EN BANC
A similar rule is found in Section 5 of BP
[G.R. No. 93867 :  December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity
as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.
DECISION
CRUZ, J.:
 
The petitioner is challenging the designation by the President of the Philippines of
Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on
Elections, in place of Chairman Hilario B. Davide, who had been named chairman of
the fact-finding commission to investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in
issue in this case. What is the power of the President of the Philippines to make the
challenged designation in view of the status of the Commission on Elections as an
independent constitutional body and the specific provision of Article IX-C, Section 1(2)
of the Constitution that "(I)n no case shall any Member (of the Commission on
Elections) be appointed or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where
President Elpidio Quirino designated the Solicitor General as acting member of the
Commission on Elections and the Court revoked the designation as contrary to the
Constitution. It is also alleged that the respondent is not even the senior member of
the Commission on Elections, being outranked by Associate Commissioner Alfredo E.
Abueg, Jr. :-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on
Elections is an internal matter that should be resolved by the members themselves
and that the intrusion of the President of the Philippines violates their independence.
He cites the practice in this Court, where the senior Associate Justice serves as Acting
Chief Justice in the absence of the Chief Justice. No designation from the President of
the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in
the case of the Supreme Court because the temporary succession cited is provided for
in Section 12 of the Judiciary Act of 1948.
129 for the Court of Appeals. There is no such arrangement, however, in the case of
the Commission on Elections. The designation made by the President of the Philippines
should therefore be sustained for reasons of "administrative expediency," to prevent
disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that
the operations of the Commission on Elections would have been disturbed or
stalemated if the President of the Philippines had not stepped in and designated an
Acting Chairman. There did not seem to be any such problem. In any event, even
assuming that difficulty, we do not agree that "only the President (could) act to fill the
hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
Commissions as "independent." Although essentially executive in nature, they are not
under the control of the President of the Philippines in the discharge of their respective
functions. Each of these Commissions conducts its own proceedings under the
applicable laws and its own rules and in the exercise of its own discretion. Its
decisions, orders and rulings are subject only to review on Certiorari by this Court as
provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes
under that discretion. That discretion cannot be exercised for it, even with its consent,
by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and
therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.
chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed
at will from her permanent position as Associate Commissioner. It is no less true,
however, that she can be replaced as Acting Chairman, with or without cause, and
thus deprived of the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the
President of the Philippines to fill the void by extending the temporary designation in
favor of the respondent. This is still a government of laws and not of men. The
problem allegedly sought to be corrected, if it existed at all, did not call for
presidential action. The situation could have been handled by the members of the
Commission on Elections themselves without the participation of the President,
however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections
would most likely have been guided by the seniority rule as they themselves would
have appreciated it. In any event, that choice and the basis thereof were for them and
not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved
only by the best of motives when she issued the challenged designation. But while
conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution. Hence, even as this Court revoked the designation in the Bautista case,
so too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission
on Elections, foremost among which is the security of tenure of its members. That
guaranty is not available to the respondent as Acting Chairman of the Commission on
Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee
B. Yorac as Acting Chairman of the Commission on Elections is declared
UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as
such. This is without prejudice to the incumbent Associate Commissioners of the
Commission on Elections restoring her to the same position if they so desire, or
choosing another member in her place, pending the appointment of a permanent
Chairman by the President of the Philippines with the consent of the Commission on
Appointments. : rd

SO ORDERED.
G.R. No. 142038               September 18, 2000
ROLANDO E. COLUMBRES, petitioner,
vs.
COMMISSION ON ELECTIONS and HILARIO DE GUZMAN, JR., respondents.
DECISION
BUENA, J.:
This petition for certiorari seeks the nullification of the COMELEC En Banc Resolution dated
January 25, 2000 which affirmed the Resolution of the Second Division setting aside the
decision of the Regional Trial Court of Dagupan City, Branch 40 in Election Case No. D- 31-98
annulling the election and proclamation of private respondent Hilario de Guzman, Jr. as Mayor
of San Jacinto, Pangasinan in the May 11, 1998 elections.
Petitioner Rolando Columbres and private respondent Hilario de Guzman, Jr. were candidates
for the position of Mayor of San Jacinto, Pangasinan during the May 11, 1998 elections. After
canvassing, the Municipal Board of Canvassers proclaimed private respondent with 4,248
votes as against petitioner's 4,104 votes. Subsequently, petitioner filed an election protest with
the Regional Trial Court docketed as Election Case No. D-31-98. Petitioner contested 42
precincts and prayed for the revision of ballots in the said precincts.
On December 7, 1998, the trial court rendered its decision, declaring petitioner as the duly
elected mayor of San Jacinto, Pangasinan with 4,037 votes against 3,302 votes of private
respondent.
Private respondent appealed the decision to the respondent COMELEC. The case was
docketed as COMELEC EAC No. A-20-98 and raffled to the COMELEC Second Division.
On October 5, 1999, the Second Division promulgated its Resolution reversing and setting
aside the decision rendered by the Regional Trial Court and, instead, affirmed the election and
proclamation of private respondent. Private respondent was declared to have won by sixty-
nine (69) votes.
Petitioner filed a motion for reconsideration with respect to the ruling of the COMELEC Second
Division, validating 120 marked ballots in favor of private respondent, despite absence of
evidence, to prove that the marks have been placed on the ballots by third persons other than
the voters themselves. Petitioner likewise moved for a reconsideration of the decision with
respect to the 111 ballots found by the trial court to have been written by two persons, but not
so ruled upon by the Second Division, again in favor of private respondent. Lastly, petitioner
claimed that the Second Division erred in totally disregarding his other objections and
therefore urged the COMELEC EN BANC to review the findings of the Second Division.
On January 25, 2000, the respondent COMELEC En Banc issued its Resolution denying
petitioner's motion for reconsideration and affirming the ruling of the Second Division.
In resolving petitioner's Motion for Reconsideration, the respondent COMELEC En Banc, in
the herein assailed Resolution, said:
"xxx Protestant-appellee alleges that there were 124 ballots which were written by two (2)
persons, and as such they should all be annulled. Instead, the Commission (Second Division)
annulled only 13 ballots while validating 111 ballots in favor of protestee-appellant Hilario de
Guzman, Jr. Movant contends that the 13 ballots commonly invalidated by both the COMELEC
(Second Division) and the trial court as having been written by two persons were no different
from the 111 ballots validated by the Commission (Second Division) but invalidated by the trial
court.
"x x x x x x x x x
"xxx The finding by the Commission (Second Division) that the 111 questioned ballots were
written by the same person is a finding of fact that may not be the subject of a motion for
reconsideration. Movant protestant-appellee is not challenging the sufficiency of the evidence
in this instance but the appreciation thereof by the Commission (Second Division)." 1
"xxx Movant protestant-appellee (also) contends that there were 120 ballots erroneously
validated by the Commission (Second Division) which were admittedly marked. He argues that
whenever ballots contain markings very obvious and visible on their faces, the presumption is
that the said markings on the ballots were placed thereat by the voter themselves - thus
nullifying the said ballots. Stated otherwise, protestant-appellee argues that the purported
markings on the questioned ballots are presumed to have been placed there by the voters
themselves and, unless proven otherwise, nullifies the ballots.
"We disagree. The movant is relying on an erroneous and misleading presumption. The rule is
that no ballot should be discarded as marked unless its character as such is unmistakable.
The distinction should always be between marks that were apparently, carelessly, or
innocently made, which do not invalidate the ballot, and marks purposely placed thereon by
the voter with a view to possible future identification of the ballot, which invalidate it. (Cacho
vs. Abad, 62 Phil. 564). The marks which shall be considered sufficient to invalidate the ballot
are those which the voter himself deliberately placed on his ballot for the purpose of identifying
it thereafter (Valenzuela vs. Carlos, 42 Phil. 428). In other words, a mark placed on the ballot
by a person other than the voter himself does not invalidate the ballot as marked. (Tajanlangit
vs. Cazenas, 5 SCRA 567)" 2
Hence, the present petition.
Petitioner raises two issues:
1. Whether or not, the findings of fact of the COMELEC Division, especially so in matters of
appreciation of ballots, is absolute and cannot be the subject of a Motion for Reconsideration
before the COMELEC En Banc; and
2. Whether or not, in appreciation of ballots, when a ballot is found to be marked, absent any
evidence aliunde, there is the presumption that the markings were placed by a third person,
and therefore, should not invalidate the ballot.
On the first issue, indeed, the COMELEC erred when it declared that
"xxx it is emphatic that the grounds of motion for reconsideration should consist of insufficiency
of evidence to justify the decision, order or ruling; or that the said decision, order or ruling is
contrary to law. Nowhere in the provision can finding of fact be the subject of motion for
reconsideration. The finding by the Commission (Second Division) that the 111 questioned
ballots were written by the same person is a finding of fact that may not be the subject of a
motion for reconsideration. Movant protestant-appellee is not challenging the sufficiency of the
evidence in this instance but the appreciation thereof by the Commission (Second Division)." 3 gravely abused its discretion in declaring that the COMELEC Division's findings on the
Section 1, Rule 19 of the COMELEC Rules of Procedure reads:
"Section 1. Grounds of Motion for Reconsideration. - A motion for reconsideration may be filed
on the grounds that the evidence is insufficient to justify the decision, order or ruling; or that
the said decision, order or ruling is contrary to law."
Commissioner Dy-Liaco, in her Dissenting Opinion, correctly opined, and we quote:
"I dissent in part from the majority conclusion that finding of facts on the one hundred eleven
(111) questioned ballots cannot be the subject of a motion for reconsideration considering that
the movant protestant/appellee 'is not challenging the sufficiency of evidence in this instance
but the appreciation thereof by the Commission (Second Division).' Protestant/Appellee in his
discussion of his motion for reconsideration (p. 205 of the records of the case/ p. 24 of the MR
pleading) imploring the Commission En Banc to review, re-examine and re-inspect the 111
ballots where the Trial Court and the Division disagreed and make its own final findings and
determination, in effect disputes the ruling of the Second Division implying that the
appreciation is contrary to law. Rule 19, Sec. 1 of the COMELEC Rules of Procedure
enumerates the grounds that may be raised in motions for reconsideration and one of which is
that the decision, order or ruling is contrary to law. Insufficiency of evidence to justify the
decision, order, or ruling is not the only ground for the filing of motions for reconsideration. xxx
"When protestant/appellee argued that the appreciation of the Division is erroneous, there is
the implication that such finding or ruling is contrary to law and thus, may be a proper subject
of a motion for reconsideration."
To determine the winning candidate, the application of election law and jurisprudence in
appreciating the contested ballots, is essential. Any question on the appreciation of the ballots
would directly affect the sufficiency of the evidence supporting the declared winner. As the
Solicitor General submits in his comment on the petition, any question on the sufficiency of the
evidence supporting the assailed decision, order or ruling of a COMELEC Division is also a
proper subject of a motion for reconsideration before the COMELEC en banc.
Moreover, the opposing conclusions of the trial court and the COMELEC Second Division
should have prompted the COMELEC en banc to undertake an independent appreciation of
the contested ballots to see for itself which of the conflicting rulings is valid and should be
upheld.
Be that as it may, it is our considered opinion, and we rule, that the COMELEC en banc
contested ballots are findings of facts "that may not be the subject of a motion for
reconsideration".
On the second issue, petitioner argues that the findings, both by the trial court as well as the
COMELEC's Second Division, are similar - that said 120 ballots (Exhs "R," "R-1" and series)
indeed, had markings but the trial court and the COMELEC Second Division differed in their
conclusion. The trial court nullified the ballots (supposedly in favor of herein private
respondent) for being admittedly marked. On the other hand, the Second Division declared the
ballots valid because the marks were allegedly placed by third person/s, purposely to
invalidate the ballots. Petitioner alleges that respondent COMELEC en banc gravely abused
its discretion in presuming that the markings found on the ballots have been made by third
persons, absent concrete evidence showing that they were placed by the voters themselves.
Petitioner is correct that there is no such presumption in law. Instead, the legal presumption is
that the sanctity of the ballot has been protected and preserved. Where the ballot, however,
shows distinct and marked dissimilarities in the writing of the names of some candidates from
the rest, the ballot is void for having been written by two hands. A ballot appearing to have
4 

been written by two persons is presumed to have been cast "as is" during the voting, and this
presumption can only be overcome by showing that the ballot was tampered with after it was
deposited in the ballot box.5

If the COMELEC Second Division found markings in the contested 111 ballots that were
placed by persons other than the voters themselves, then it should not have validated them.
To rule the way it did, would require a showing that the integrity of ballots has not been
violated. Otherwise, the presumption that they were placed "as is" in the ballot box stands.

In his Comment, the Solicitor General raised the following significant questions: "In the
absence of showing that the ballot boxes were violated and that somebody else had access to
the ballots, how was the COMELEC able to conclude that indeed said marks were placed by
persons other than the voters?" Indeed, the poll body is mum on how third persons were able
to access the questioned ballots. Furthermore, the COMELEC Second Division neither made a
categorical finding as to whether the different markings on the ballots were deliberately placed
so as to sufficiently identify them or not. Yet, the COMELEC en banc simplistically concluded
that there was "nothing left for xxx it but to affirm the VALIDITY of the questioned 120 ballots in
favor of protestee-appellant Hilario de Guzman, Jr."

In view of the foregoing circumstances, it appears that the COMELEC en banc was remiss in
its duties to properly resolve the Motion for Reconsideration before it. It should have given a
close scrutiny of the questioned ballots and determined for itself their validity, i.e., whether
they were marked ballots or not. There is truly a need to actually examine the questioned
ballots in order to ascertain the real nature of the alleged markings thereon. One has to see
the writings to be able to determine whether they were written by different persons, and
whether they were intended to identify the ballot.

WHEREFORE, the case is hereby remanded to the COMELEC en banc for it to physically re-
examine the contested ballots and ascertain their validity. It is further directed to resolve this
case within thirty (30) days from receipt of this decision in view of the proximity of the next
elections.

This decision is immediately executory.

SO ORDERED.

G.R. No. 139853               September 5, 2000
FERDINAND THOMAS M. SOLLER, petitioner,
vs.
COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN,
ORIENTAL MINDORO (Branch 42) and ANGEL M. SAULONG, respondents.
RESOLUTION
QUISUMBING, J.:
This special civil action for certiorari seeks to annul the resolution promulgated on August 31,
1999, in COMELEC special relief case SPR No. 10-99. The resolution dismissed petitioner's
petition to set aside the orders of the Regional Trial Court of Pinamalayan, Oriental Mindoro,
dated October 1, 1998 and February 1, 1999, which denied petitioner's motion to dismiss the
election protest filed by private respondent against petitioner and the motion for
reconsideration, respectively.
Petitioner and private respondent were both candidates for mayor of the municipality of
Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14, 1998, the municipal
board of canvassers proclaimed petitioner Ferdinand Thomas Soller duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a "petition for
annulment of the proclamation/exclusion of election return". On May 25, 1998, private
1 
respondent filed with the Regional Trial Court of Pinamalayan, Oriental Mindoro, an election
protest against petitioner docketed as EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also moved to
dismiss private respondent's protest on the ground of lack of jurisdiction, forum-shopping, and
failure to state cause of action.
2
On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private respondent.
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner moved for
reconsideration but said motion was denied. Petitioner then filed with the COMELEC a petition
for certiorari contending that respondent RTC acted without or in excess of jurisdiction or with
grave abuse of discretion in not dismissing private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election tribunal
held that private respondent paid the required filing fee. It also declared that the defect in the
verification is a mere technical defect which should not bar the determination of the merits of
the case. The election tribunal stated that there was no forum shopping to speak of.
Under the COMELEC Rules of Procedure, a motion for reconsideration of its en banc ruling is
prohibited except in a case involving an election offense. Since the present controversy
3 
involves no election offense, reconsideration is not possible and petitioner has no appeal or
any plain, speedy and adequate remedy in the ordinary course of law. Accordingly, petitioner
properly filed the instant petition for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the status quo ante prevailing as
of September 17, 1999, the date of filing of this petition.
Before us, petitioner asserts that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction:
[I]
... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE RESPONDENT'S
ELECTION PROTEST DESPITE HIS (sic) LACK OF JURISDICTION OVER THE SAME BY
REASON OF THE FAILURE OF THE PRIVATE RESPONDENT TO PAY ALL THE
REQUISITE FILING FEES.
[II]
... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF HIS PETITION
IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE OF ACTION.
[III]
...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE ELECTION PROTEST
BELOW ON THE GROUNDS OF FORUM-SHOPPING AND FAILURE TO COMPLY WITH
THE SUPREME COURT CIRCULAR REQUIRING A TRUTHFUL CERTIFICATION OF NON-
FORUM SHOPPING DESPITE INCONTROVERTIBLE EVIDENCE THEREOF. 4
In our view, notwithstanding petitioner's formulation of issues, the principal question presented
for our resolution is whether or not public respondent COMELEC gravely abused its discretion
amounting to lack or excess of jurisdiction in not ordering the dismissal of private respondent's
election protest.
At the outset, even if not squarely raised as an issue, this Court needs to resolve the question
concerning COMELEC's jurisdiction. Unless properly resolved, we cannot proceed further in
this case.
Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite the disposition of election cases, including pre-
proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decision shall be decided by the Commission en
banc."
Thus, in Sarmiento vs. COMELEC and in subsequent cases, we ruled that the COMELEC,
5  6 
sitting en banc, does not have the requisite authority to hear and decide election cases
including pre-proclamation controversies in the first instance. This power pertains to the
divisions of the Commission. Any decision by the Commission en banc as regards election
cases decided by it in the first instance is null and void.
As can be gleaned from the proceedings aforestated, petitioner's petition with the COMELEC
was not referred to a division of that Commission but was, instead, submitted directly to the
Commission en banc. The petition for certiorari assails the trial court's order denying the
motion to dismiss private respondent's election protest. The questioned order of the trial court
is interlocutory because it does not end the trial court's task of adjudicating the parties'
contentions and determining their rights and liabilities as regards each other. In our view, the
7  which OR 7023752 was issued for the Judiciary Development Fund as shown by the entries in
authority to resolve petition for certiorari involving incidental issues of election protest, like the
questioned order of the trial court, falls within the division of the COMELEC and not on the
COMELEC en banc. Note that the order denying the motion to dismiss is but an incident of the
election protest. If the principal case, once decided on the merits, is cognizable on appeal by a
division of the COMELEC, then, there is no reason why petitions for certiorari relating to
incidents of election protest should not be referred first to a division of the COMELEC for
resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance of
petitioner's petition in the first instance.
Since public respondent COMELEC had acted without jurisdiction in this case, the petition
herein is without doubt meritorious and has to be granted. But in order to write finis to the
controversy at bar, we are constrained to also resolve the issues raised by petitioner, seriatim.
Petitioner contends that private respondent's protest should have been dismissed outright as
the latter failed to pay the amount of P300.00 filing fee required under the COMELEC
rules. Petitioner's contention is supported by Section 9, Rule 35 of the COMELEC Rules of
8 
Procedure and corresponding receipts itemized as follows:
9  10 
P368.00 - Filing fee in EC 31-98, O.R. 7023752;
P 32.00 - Filing fee in EC 31-98, O.R. 7022478;
P 46.00 - Summons fee in EC 31-98, O.R. 7023752;
P 4.00 - Summons fee in EC 31-98, O.R. 4167602;
P 10.00 -- Legal Research Fund fee, O.R. 2595144, and;
P 5.00 -- Victim Compensation Fund, O.R. 4167979
-----------
P465.00
Close scrutiny of the receipts will show that private respondent failed to pay the filing fee of
P300.00 for his protest as prescribed by the COMELEC rules. The amount of P368.00 for
the cash book of the clerk of court. Thus, only P32.00 with OR 7022478 credited to the
11 
general fund could be considered as filing fee paid by private respondent for his protest. A
court acquires jurisdiction over any case only upon the payment of the prescribed docket
fee. Patently, the trial court did not acquire jurisdiction over private respondent's election
12 
protest. Therefore, COMELEC gravely erred in not ordering the dismissal of private
respondent's protest case.
We have in a string of cases had the occasion to rule on this matter. In Loyola
13 
vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing fee of
P32.00 at the time of filing of the election protest. Upon filing his counter-protest, petitioner
was assessed to pay the same amount. Subsequently, the trial court remedied the situation by
directing the parties to pay the balance of P268.00. On review, we held that the lapse was not
at all attributable to private respondent and there was substantial compliance with the filing fee
requirement. The error lies in the Clerk's misapplication and confusion regarding application of
Section 9 of Rule 35 of the COMELEC Rules of Procedure and this Court's resolution dated
September 4, 1990 amending Rule 141 of the Rules of Court. An election protest falls within
the exclusive original jurisdiction of the Regional Trial Court, in which case the Rules of Court
will apply, and that the COMELEC Rules of Procedure is primarily intended to govern election
cases before that tribunal. But the Court declared that this decision must not provide relief to
parties in future cases involving inadequate payment of filing fees in election cases. Our
decisions in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or
mistake in any failure to pay the full amount of filing fees in election cases.
In Miranda vs. Castillo, private respondents each paid per assessment the amount of P465.00
as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal research
fund, P5.00 for victim compensation fee, and only the amount of P32.00 was regarded as filing
fee. The Court considered the amount as partial payment of the P300.00 filing fee under the
COMELEC rules and required payment of the deficiency in the amount of P268.00. But then
again, the Court reiterated the caveat that in view of Pahilan, Gatchalian, and Loyola cases
we would no longer tolerate any mistake in the payment of the full amount of filing fees for
election cases filed after the promulgation of the Loyola decision on March 27, 1997.
Clearly then, errors in the payment of filing fees in election cases is no longer excusable. And
the dismissal of the present case for that reason is, in our view, called for.
Besides, there is another reason to dismiss private respondent's election protest. We note that
the verification of aforesaid protest is defective. In the verification, private respondent merely
stated that he caused the preparation of his petition and he has read and understood all the
allegations therein. Certainly, this is insufficient as private respondent failed to state that the
14  dismiss private respondent's election protest against petitioner. And to reiterate, respondent
contents of his election protest are true and correct of his persoral knowledge. Since the
15  COMELEC en banc had no jurisdiction to affirm the refusal of respondent trial court to dismiss
petition lacks proper verification, it should be treated as an unsigned pleading and must be
dismissed. 16
Further, we find that private respondent did not comply with the required certification against
forum shopping.  Private respondent successively filed a "petition for annulment of the
1âwphi1
proclamation/exclusion of election return" and an election protest. Yet, he did not disclose in
his election protest that he earlier filed a petition for annulment of proclamation/exclusion of
election returns.
It could be argued that private respondent's petition for annulment of proclamation/exclusion of
election returns was a pre-proclamation case. The issues raised in that petition pertain to the
preparation and appreciation of election returns and the proceedings of the municipal board of
canvassers. But note that such petition was filed after the proclamation of petitioner as the
winning candidate, thus, the petition was no longer viable, for pre-proclamation controversies
may no longer be entertained by the COMELEC after the winning candidates have been
proclaimed. It might even be claimed with some reason that private respondent, by resorting to
the wrong remedy, abandoned his pre-proclamation case earlier filed. 17
Nonetheless, private respondent's belief that he no longer had a pending case before the
COMELEC because he deemed it abandoned upon filing of his protest is not a valid reason for
non-disclosure of the pendency of said pre-proclamation case. Note that the COMELEC
dismissed private respondent's pre-proclamation case only on July 3, 1998. Before the
dismissal, said case was legally still pending resolution. Similarly, the fact that private
respondent's protest was not based on the same cause of action as his pre-proclamation case
is not a valid excuse for not complying with the required disclosure in the certification against
forum shopping. The requirement to file a certificate of non-forum shopping is mandatory.
Failure to comply with this requirement cannot be excused by the fact that a party is not guilty
of forum shopping. The rule applies to any complaint, petition, application or other initiatory
pleading, regardless of whether the party filing it has actually committed forum shopping.
Every party filing any initiatory pleading is required to swear under oath that he has not and
will not commit forum shopping. Otherwise we would have an absurd situation, as in this case,
where the parties themselves would be the judge of whether their actions constitute a violation
of the rule, and compliance therewith would depend on their belief that they might or might not
have violated the requirement. Such interpretation of the requirement would defeat the very
purpose of the rule.
18
Taking into account all the foregoing circumstances in this case, we are persuaded that
respondent Regional Trial Court erred and committed grave abuse of discretion in failing to
private respondent's election protest.
WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of public
respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary restraining
order issued by this Court on September 21, 1999, is made permanent. The Regional Trial
Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to DISMISS election
protest EC No. 31-98. Costs against private respondent.
SO ORDERED.
 Governor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the
election returns.

On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number
of votes, filed with the Comelec, an election protest challenging the results in a total of 201
4 

precincts. The case was assigned to the First Division (formerly Second), Commission on
5 

Elections.6

On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed
resolution in the case. To such proposed ponencia, Commissioner Julio F. Desamito
dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said
that she would "wish to see both positions, if any, to make her (my) final decision."
7

In the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On
March 3, 2000, the President of the Philippines appointed Commissioner Rufino S. Javier to
G.R. No. 143398               October 25, 2000 the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4,
2000.
RUPERTO A. AMBIL, JR., petitioner,
vs. On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported
THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) resolution promulgated on February 14, 2000, signed by Commissioner Guiani and
and JOSE T. RAMIREZ, respondents. Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondent
Ramirez who was declared winner by a margin of 1,176 votes. On February 28, 2000, the
8 

DECISION Comelec, First Division, declared that the thirteen-page resolution "is a useless scrap of paper
which should be ignored by the parties in this case there being no promulgation of the
PARDO, J.: Resolution in the instant case." 
9

The case before the Court is a special civil action for certiorari and prohibition with preliminary On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of
injunction or temporary restraining order seeking to nullify the order dated June 15, 2000 of the the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00 in the
Commission on Elections (Comelec), First Division, giving notice to the parties of the
1  afternoon. However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation
10 

promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus challenging the validity of the purported Guiani resolution. The Comelec, First Division, acting
Ruperto A. Ambil, Jr., Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the on the motion, on the same date, postponed the promulgation until this matter is resolved. 11

afternoon and to prohibit the respondent Commission on Election from promulgating the so
called "Guiani ponencia." 2
On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G.
Tancangco and Rufino S. Javier, sent a joint memorandum to Commissioner Julio F.
The facts are as follows: Desamito, presiding Commissioner, stating:

Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the "Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En
position of Governor, Eastern Samar, during the May 11, 1998 elections. On May 16, 1998,
3  Banc that this case be submitted for a reconsultation by the members of the First Division, it is
the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elected our position that we promulgate as soon as possible the Guiani Resolution of the case. This is
notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No.
73777) and other doctrinal cases on the issue. After all, this Commission stood pat on its
policy that what is controlling is the date the ponente signed the questioned Resolution as
what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137).
"In view of the foregoing, we recommend that we proceed with the promulgation of the subject
resolution and let the aggrieved party challenge it through a Motion for Reconsideration before
the Commission en banc or through a certiorari case before the Supreme Court. 12
On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito,
issued an order setting the promulgation of the resolution in the case on June 20, 2000, at
2:00 o’clock in the afternoon.13
Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed
the instant petition.
14
Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the
resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00 in the afternoon, and
prohibiting the Comelec, First Division, from promulgating the purported Guiani resolution and
directing the Comelec, First Division, to deliberate anew on the case and to promulgate the
resolution reached in the case after such deliberation.
15
On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec
from implementing the June 15, 2000 order for the promulgation of the resolution set on June
20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the respondents to
comment on the petition within ten (10) days from notice. 16
On July 10, 2000, respondent Ramirez filed his comment. Respondent Ramirez admitted that
17  motion for reconsideration is a plain and adequate remedy provided by law. Failure to 28
the proposed resolution of Commissioner Guiani was no longer valid after his retirement on
February 15, 2000. He submitted that Comelec, First Division, its membership still constituting
18 
a majority, must elevate the protest case to the Comelec en banc until resolved with finality.
19
In his comment filed on August 29, 2000, the Solicitor General interposed no objection to the
petition.
20
At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of
the resolution in the case (EPC Case No. 98-29) acted without jurisdiction or with grave abuse
of discretion amounting to lack of jurisdiction.
We find the petition without merit.
To begin with, the power of the Supreme Court to review decisions of the Comelec is
prescribed in the Constitution, as follows:
"Section 7. Each commission shall decide by a majority vote of all its members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum required by the rules of the commission or by the
commission itself. Unless otherwise provided by this constitution or by law, any decision,
order, or ruling of each commission may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from receipt of a copy thereof." [emphasis 21 
supplied]
"We have interpreted this provision to mean final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision
22 
must be a final decision or resolution of the Comelec en banc, not of a division, certainly
23  24 
not an interlocutory order of a division. The Supreme Court has no power to review via
25 
certiorari, an interlocutory order or even a final resolution of a Division of the Commission on
Elections.
26
The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the
Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised
Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as
amended. 27
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be
no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A
 
abide by this procedural requirement constitutes a ground for dismissal of the petition. 29
In like manner, a decision, order or resolution of a division of the Comelec must be reviewed
by the Comelec en banc via a motion for reconsideration before the final en banc decision may
be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for
reconsideration is mandatory. Article IX-C, Section 3, 1987 Constitution provides as follows:
30 
"Section 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc. [emphasis supplied]
Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be choice but to seek recourse in the Supreme Court. Such important fact is not present in the
raised to the en banc via a motion for reconsideration. 31
case at bar.

The case at bar is an election protest involving the position of Governor, Eastern Samar. It is 32 
We must emphasize that what is questioned here is the order dated June 15, 2000, which is a
within the original jurisdiction of the Commission on Elections in division. Admittedly, petitioner
33 
mere notice of the promulgation of the resolution in EPC Case No. 98-29. We quote the order
did not ask for a reconsideration of the division’s resolution or final decision . In fact, there was
34 
in question in full, to wit:
really no resolution or decision to speak of  because there was yet no promulgation, which
35 

was still scheduled on June 20, 2000 at 2:00 o’clock in the afternoon. Petitioner went directly "Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint
to the Supreme Court from an order of "promulgation of the Resolution of this case" by the Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to the
First Division of the Comelec. 36
Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states:

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of ‘In view of the foregoing, we recommend that we proceed with the promulgation of the subject
the Comelec in division can not dispense with the filing of a motion for reconsideration of a resolution and let the aggrieved party challenge it through a Motion for Reconsideration before
decision, resolution or final order of the Division of the Commission on Elections because the the Commission en banc or through a certiorari case before the Supreme Court.’
case would not reach the Comelec en banc without such motion for reconsideration having
been filed and resolved by the Division. the promulgation of the Resolution in this case is hereby set on Tuesday, June 20,
2000 at 2:00 o’clock in the afternoon at the Comelec Session Hall, Intramuros, Manila.
The instant case does not fall under any of the recognized exceptions to the rule in certiorari
cases dispensing with a motion for reconsideration prior to the filing of a petition. In truth, the37 
No further motion for postponement of the promulgation shall be entertained.
exceptions do not apply to election cases where a motion for reconsideration
is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final
The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of
decision is what is reviewable via certiorari before the Supreme Court. 38

this Order through telegram and by registered mail or personal delivery.

We are aware of the ruling in Kho v. Commission on Elections, that "in a situation such as this
39 

"SO ORDERED.
where the Commission on Elections in division committed grave abuse of discretion or acted
without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending
before it and the controversy did not fall under any of the instances mentioned in Section 2, "Given this 15th day of June, 2000 in the City of Manila, Philippines.
Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer
the controversy to the Commission en banc as this is not permissible under its present rules FOR THE DIVISION:
but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court."
This is the case relied upon by the dissenting justice to support the proposition that resort to [Sgd.] JULIO F. DESAMITO
the Supreme Court from a resolution of a Comelec Division is allowed. Unfortunately, the Kho
40  Presiding Commissioner" 44

case has no application to the case at bar. The issue therein is, may the Commission on
Elections in division admit an answer with counter-protest after the period to file the There is nothing irregular about the order of promulgation of the resolution in the case, except
same has expired? The Comelec First Division admitted the answer with counter-protest of
41 
in the mind of suspicious parties. Perhaps what was wrong in the order was the reference to
the respondent. The Supreme Court declared such order void for having been issued with the memorandum of the two commissioners that was not necessary and was a superfluity,
grave abuse of discretion tantamount to lack of jurisdiction. However, an important moiety in
42 
or excessus in linguae. All the members of the Division were incumbent Commissioners of
the Kho case was not mentioned in the dissent. It is that the Comelec, First the Commission on Elections (COMELEC) and had authority to decide the case in the
Division, denied the prayer of petitioner for the elevation of the case to en banc because the Division. What appears to be patently null and void is the so-called Guiani resolution if it is
orders of admission were mere interlocutory orders. Hence, the aggrieved party had no
43 
the one to be promulgated. We cannot assume that the Comelec will promulgate a void
resolution and violate the Constitution and the law. We must assume that the members of the
Commission in Division or en banc are sworn to uphold and will obey the Constitution.
Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the
contents of the sealed envelope containing the resolution to be promulgated on June 20, 2000,
simply because it has not been promulgated!
It may be true that the parties received a copy of what purports to be the Guiani
resolution, declaring respondent Jose T. Ramirez the victor in the case. Such Guiani
45 
resolution is admitted by the parties and considered by the Commission on Elections as
void. The Solicitor General submitted an advice that the same resolution is deemed vacated
by the retirement of Commissioner Guiani on February 15, 2000. It can not be promulgated
46 
anymore for all legal intents and purposes.
We rule that the so-called Guiani resolution is void for the following reasons:
First: A final decision or resolution becomes binding only after it is promulgated and not
before. Accordingly, one who is no longer a member of the Commission at the time the final
decision or resolution is promulgated cannot validly take part in that resolution or
decision. Much more could he be the ponente of the resolution or decision. The resolution or
47 
decision of the Division must be signed by a majority of its members and duly promulgated.
Commissioner Guiani might have signed a draft ponencia prior to his retirement from office,
but when he vacated his office without the final decision or resolution having been
promulgated, his vote was automatically invalidated. Before that resolution or decision is
48 
so signed and promulgated, there is no valid resolution or decision to speak of. 49
Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections,
denied the release or promulgation of the Guiani resolution. He disowned the initials on the
face of the first page of the resolution showing its promulgation on February 14, 2000, and
said that it was a forgery. There is no record in the Electoral Contests and Adjudication
Department (ECAD) of the Commission on Election that a "resolution on the main merits of the
case was promulgated." 50
Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the
"alleged thirteen (13) page resolution" for being "a useless scrap of paper which should
be ignored by the parties" there being no promulgation of the resolution in the case. 51
Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani
resolution. On the date that it was purportedly promulgated, which was February 14, 2000, the
Division issued an order where Commissioner Tancangco expressed her reservations and
stated that she wished to see both positions, if any, before she made her final decision. 52
A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date
previously fixed, of which notice shall be served in advance upon the parties or their
attorneys personally or by registered mail or by telegram. 53
It is jurisprudentially recognized that at any time before promulgation of a decision or
resolution, the ponente may change his mind. Moreover, in this case, before a final decision
54 
or resolution could be promulgated, the ponente retired and a new commissioner appointed.
And the incoming commissioner has decided to take part in the resolution of the case. It is
presumed that he had taken the position of his predecessor because he co-signed the request
for the promulgation of the Guiani resolution. 55
If petitioner were afraid that what would be promulgated by the Division was the Guiani
resolution, a copy of which he received by mail, which, as heretofore stated, was not
promulgated and the signature thereon of the clerk of court was a forgery, petitioner could
seek reconsideration of such patently void resolution and thereby the case would be elevated
to the Commission en banc. 56
Considering the factual circumstances, we speculated ex mero motu that the Comelec would
promulgate a void resolution.
"The sea of suspicion has no shore, and the court that embarks upon it is without rudder or
compass." We must not speculate that the Comelec would still promulgate a void resolution
57 
despite knowledge that it is invalid or void ab initio.
Consequently, the filing of the instant petition before this Court was premature. Petitioner
failed to exhaust adequate administrative remedies available before the COMELEC.
In a long line of cases, this Court has held consistently that "before a party is allowed to seek
the intervention of the court, it is a pre-condition that he should have availed of all the means
of administrative processes afforded him. Hence, if a remedy within the administrative
machinery can still be resorted to by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his jurisdiction, then such remedy should
be exhausted first before the court’s judicial power can be sought. The premature invocation of
court’s intervention is fatal to one’s cause of action." 58
"This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is
a pre-requisite to the viability of a special civil action for certiorari, unless the party who avails
of the latter can convincingly show that his case falls under any of the following exceptions to
the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3)
where its application may cause great and irreparable damage, (4) where the controverted
acts violate due process, (5) failure of a high government official from whom relief is sought to
act on the matter, and seeks when the issue for non-exhaustion of administrative remedies
has been rendered moot." 59
The Court orders the Commission on Elections, First Division, to resolve with all deliberate
dispatch Election Protest Case No. 98-29 and to promulgate its resolution thereon adopted by
majority vote within thirty (30) days from notice hereof.
The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved,
effective immediately.

"This doctrine of exhaustion of administrative remedies was not without its practical and legal No costs.
reasons, for one thing, availment of administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. It is no less true to state that the courts of SO ORDERED.
justice for reasons of comity and convenience will shy away from a dispute until the system of
administrative redress has been completed and complied with so as to give the administrative
agency concerned every opportunity to correct its error and to dispose of the case. However,
we are not amiss to reiterate that the principal of exhaustion of administrative remedies as
tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its
flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial
settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2)
when the issue involved is purely a legal question, (3) when the administrative action is
patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the
part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the
respondent is a department secretary whose acts as an alter ego of the president bears the
implied and assumed approval of the latter, (7) when to require exhaustion of administrative
remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9)
when the subject matter is a private land in land case proceedings, (10) when the rule does
not provide a plain, speedy and adequate remedy, and (11) when there are circumstances
indicating the urgency of judicial intervention." The administrative authorities must be given an
60 

opportunity to act and correct the errors committed in the administrative forum. Only after
61 

administrative remedies are exhausted may judicial recourse be allowed. 62

This case does not fall under any of the exceptions and indeed, as heretofore stated, the
exceptions do not apply to an election case within the jurisdiction of the Comelec in Division.

Hence, the petition at bar must be dismissed for prematurity. "Failure to exhaust administrative
remedies is fatal to a party's cause of action and a dismissal based on that ground is
tantamount to a dismissal based on lack of cause of action." 63

WHEREFORE, the Court hereby DISMISSES the petition for prematurity.

 The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission

on Elections (Comelec) en banc Resolution No. 98-1419 dated April 21, 1998. In the said
1 

Resolution, the poll body

RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any

other groups, its agents or representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the
elections for national officials particularly for President and Vice President, results of which
shall be [broadcast] immediately." The electoral body believed that such project might conflict
2 

with the official Comelec count, as well as the unofficial quick count of the National Movement
for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner
ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner.
We directed the Comelec to cease and desist, until further orders, from implementing the
assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit
polls were actually conducted and reported by media without any difficulty or problem.

The Issues
G.R. No. 133486           January 28, 2000
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
ABS-CBN BROADCASTING CORPORATION, petitioner, grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the
vs. issuance of a restraining order enjoining the petitioner or any [other group], its agents or
COMMISSION ON ELECTIONS, respondent. representatives from conducting exit polls during the . . . May 11 elections."
3

PANGANIBAN, J.: In his Memorandum, the solicitor general, in seeking to dismiss the Petition, brings up
4 

additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a
The holding of exit polls and the dissemination of their results through mass media constitute reconsideration of the assailed Comelec Resolution.
an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban
them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the The Court's Ruling
contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the
evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the The Petition is meritorious.
5 

Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls,
without transgressing in any manner the fundamental rights of our people. Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11,
1998 election has already been held and done with. Allegedly, there is no longer any actual
controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression transcend
the past election. The holding of periodic elections is a basic feature of our democratic
government. By its very nature, exit polling is tied up with elections. To set aside the resolution
of the issue now will only postpone a task that could well crop up again in future elections. 6
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.
It has the symbolic function of educating bench and bar on the extent of protection given by
constitutional guarantees." Since the fundamental freedoms of speech and of the press are
7  unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely
being invoked here, we have resolved to settle, for the guidance of posterity, whether they
likewise protect the holding of exit polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's
failure to exhaust available remedies before the issuing forum, specifically the filing of a motion
for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed
over to prevent a miscarriage of justice, when the issue involves the principle of social justice
8  confusion as to who are the winners and the [losers] in the election," which in turn may result
or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or
9  10  in "violence and anarchy."
when the need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available. 11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998,
only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy
thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to
move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998
elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for  certiorari is
therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are announced to the public, usually
through the mass media, to give an advance overview of how, in the opinion of the polling
individuals or organizations, the electorate voted. In our electoral history, exit polls had not
been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member
of the mass media, committed to report balanced election-related data, including "the
exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative
regions."
It argues that the holding of exit polls and the nationwide reporting their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
abused its discretion and grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to
its constitutional and statutory powers to promote a clean, honest, orderly and credible May
11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the
ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the
voters," and that the surveys were designed "to condition the minds of people and cause
Public respondent further argues that "exit surveys indirectly violate the constitutional principle
to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of
ballots," in violation of Section 2, Article V of the Constitution; and relevant provisions of the
12 
Omnibus Election Code. It submits that the constitutionally protected freedoms invoked by
13 
petitioner "are not immune to regulation by the State in the legitimate exercise of its police
power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear
and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be
manipulated easily. He insists that these polls would sow confusion among the voters and
would undermine the official tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus comment or utterance must be "extremely serious and the degree of imminence
be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit extremely high" before the utterance can be punished. The danger to be guarded
polls? In answering this question, we need to review quickly our jurisprudence on the against is the "substantive evil" sought to be prevented. . . . 23

freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate
that freedom of thought and speech is the indispensable condition of nearly every other form
of freedom." 14
The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if
the words uttered create a dangerous tendency which the state has a right to prevent,
then such words are punishable. It is not necessary that some definite or immediate
acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if
the natural tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent. 24

Our Constitution clearly mandates that no law shall be passed abridging the freedom of Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
speech or of the press. In the landmark case Gonzales v. Comelec, this Court enunciated
15  16  earlier decisions in Primicias v. Fugoso and American Bible Society v. City of Manila; as well
25  26 

that at the very least, free speech and a free press consist of the liberty to discuss publicly and as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong
27  28  29 

truthfully any matter of public interest without prior restraint. v. Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test
30  31 

for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes:
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the "The question in every case is whether the words used are used in such circumstances and
truth, of securing participation by the people in social and political decision-making, and of are of such a nature as to create a clear and present danger that they will bring about the
maintaining the balance between stability and change. It represents a profound commitment
17  substantive evils that Congress has a right to prevent. It is a question of proximity and
to the principle that debates on public issues should be uninhibited, robust, and wide open. It 18  degree." 32

means more than the right to approve existing political beliefs or economic arrangements, to
lend support to official measures, or to take refuge in the existing climate of opinion on any of A limitation on the freedom of expression may be justified only by a danger of such substantive
public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress 19  character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the
that the freedom encompasses the thought we hate, no less than the thought we agree with. danger must not only be clear but also present. "Present" refers to the time element; the
danger must not only be probable but very likely to be inevitable. The evil sought to be
33 

Limitations avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a
writing instrument. 34

The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and Justification for a Restriction
unrestrained at all times and under all circumstances. They are not immune to regulation by
20 

the State in the exercise of its police power. While the liberty to think is absolute, the power to
21  Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
express such thought in words and deeds has limitations. restriction is treated an exemption. The power to exercise prior restraint is not to be presumed;
rather the presumption is against its validity. And it is respondent's burden to overthrow such
35 

In Cabansag v. Fernandez this Court had occasion to discuss two theoretical test in
22  presumption. Any act that restrains speech should be greeted with furrowed brows, so it has
36 

determining the validity of restrictions to such freedoms, as follows: been said.

These are the "clear and present danger" rule and the "dangerous tendency" rule. The To justify a restriction, the promotion of a substantial government interest must be clearly
first, as interpreted in a number of cases, means that the evil consequence of the shown. Thus:
37 
 A government regulation is sufficiently justified if it is within the constitutional power of
the government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, when the end can be
more narrowly achieved. 39
The freedoms of speech and of the press should all the more be upheld when what is sought
to be curtailed is the dissemination of information meant. to add meaning to the equally vital
right of suffrage. We cannot support any ruling or order "the effect of which would be to nullify
40  reporting of the results of exit polls cannot undermine those of the elections, since the former
so vital a constitutional right as free speech." When faced with borderline situations in which
41  is only part of the latter. If at all, the outcome of one can only be indicative of the other.
the freedom of a candidate or a party to speak or the freedom of the electorate to know is
invoked against actions allegedly made to assure clean and free elections, this Court shall
lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's
power to regulate should not be antagonistic. There can be no free and honest elections if, in
the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. 42
True, the government has a stake in protecting the fundamental right to vote by providing
voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot
and to preserve the sanctity and the integrity of the electoral process. However, in order to
justify a restriction of the people's freedoms of speech and of the press, the state's
responsibility of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research
data which may be used to study influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of
exit poll data not only for election-day projections, but also for long-term research. 43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful
election. While admitting that "the conduct of an exit poll and the broadcast of the results
thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be
curtailed if the exercise thereof creates a clear and present danger to the community or it has
a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion
considering the randomness of selecting interviewees, which further make[s] the exit poll
highly unreliable. The probability that the results of such exit poll may not be in harmony with
the official count made by the Comelec . . . is ever present. In other words, the exit poll has a
clear and present danger of destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as
much as possible be representative or reflective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant to replace or be at par with
the official Comelec count. It consists merely of the opinion of the polling group as to who the
electorate in general has probably voted for, based on the limited data gathered from polled
individuals. Finally, not at stake here are the credibility and the integrity of the elections, which
are exercises that are separate and independent from the exit polls. The holding and the
The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and
confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the
assailed Comelec Resolution is too broad, since its application is without qualification as to
whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits
44 
disruptive behavior around the voting centers. There is no showing, however, that exit polls or
45 
the means to interview voters cause chaos in voting centers. Neither has any evidence been
presented proving that the presence of exit poll reporters near an election precinct tends to
create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on
the voters' answer to the survey questions will forever remain unknown and unexplored.
Unless the ban is restrained, candidates, researchers, social scientists and the electorate in
general would be deprived of studies on the impact of current events and of election-day and
other factors on voters' choices. 1âwphi1.nêt
In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes
46 
of which was to prevent the broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly tailored to advance a state
interest nor the least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating
speech via an exit poll restriction. 47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave
open any alternative channel of communication to gather the type of information obtained
through exit polling. On the other hand, there are other valid and reasonable ways and means
to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be
brought about by exit surveys.
voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what
is forbidden is the association of voters with their respective votes, for the purpose of assuring
that the votes have been cast in accordance with the instructions of a third party. This result
cannot, however, be achieved merely through the voters' verbal and confidential disclosure to
a pollster of whom they have voted for.

For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They may be required to explain to voters that the
latter may refuse interviewed, and that the interview is not part of the official balloting process.
The pollsters may further be required to wear distinctive clothing that would show they are not
election officials. Additionally, they may be required to undertake an information campaign on
48 
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct
of exit polls, without transgressing the fundamental rights of our people.

the nature of the exercise and the results to be obtained therefrom. These measures, together WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued
election. by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities SO ORDERED.
are randomly selected in each province; (2) residences to be polled in such communities are
also chosen at random; (3) only individuals who have already voted, as shown by the indelible
ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the
poll results are released to the public only on the day after the elections. These precautions,
49 

together with the possible measures earlier stated, may be undertaken to abate the Comelec's
fear, without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media
and the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly
conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the
ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as
to be identified. Also proscribed is finding out the contents of the ballots cast by particular
 The antecedents are not disputed. 1âwphi1.nêt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of
Representative of the Lone Legislative District of the Province of Sarangani indicating in item
nine (9) of his certificate that he had resided in the constituency where he seeks to be elected
for one (1) year and two (2) months immediately preceding the election. 3

On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P.
Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to
Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-
022 and assigned to the Second Division of the COMELEC. Private respondents alleged that
DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much
less a registered voter, of the province of Sarangani where he seeks election. To substantiate
their allegations, private respondents presented the following evidence:

1. Annex "A" — the Certificate of Candidacy of respondent for

the position of Congressman of the Lone District of the
Province of Sarangani filed with the Office of the Provincial
Election Supervisor of Sarangani on March 25, 1998, where in
item 4 thereof he wrote his date of birth as December 5, 1953;
in item 9, he claims he have resided in the constituency where
he seeks election for one (1) year and two (2) months; and, in
item 10, that he is registered voter of Precinct No. 14A-1,
G.R. No. 134015 July 19, 1999 Barangay Poblacion, Alabel, Sarangani;

JUAN DOMINO, petitioner, 2. Annex "B" — Voter's Registration Record with SN 31326504

vs. dated June 22, 1997 indicating respondent's registration at
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. Precinct No. 4400-A, Old Balara, Quezon City;
BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE
CHIONGBIAN-SOLON, intervenor. 3. Annex "C" — Respondent's Community Tax Certificate No.
11132214C dated January 15, 1997;
DAVIDE, JR., CJ.:
4. Annex "D" — Certified true copy of the letter of Herson D.
Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel,
of 6 May 1998  of the Second Division of the Commission on Elections (hereafter COMELEC),
1 Sarangani, dated February 26, 1998, addressed to Mr.
declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for Conrado G. Butil, which reads:
representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998
elections, and the Decision of 29 May 1998  of the COMELEC en banc denying DOMINO's
2 In connection with your letter of even date, we are furnishing
motion for reconsideration. you herewith certified xerox copy of the triplicate copy of
COMMUNITY TAX CERTIFICATE NO. 11132214C in the
name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of the
same stub was issued to Carlito Engcong on September 5,
1997, while Certificate No. 11132213C was also issued to Mr.
Juan Domino but was cancelled and serial no. 11132215C was
issued in the name of Marianita Letigio on September 8, 1997.
5. Annex "E" — The triplicate copy of the Community Tax
Certificate No. 11132214C in the name of Juan Domino dated
September 5, 1997;
6. Annex "F" — Copy of the letter of Provincial Treasurer
Lourdes P. Riego dated March 2, 1998 addressed to Mr.
Herson D. Dema-ala, Deputy Provincial Treasurer and
Municipal Treasurer of Alabel, Sarangani, which states:
For easy reference, kindly turn-over to the undersigned for
safekeeping, the stub of Community Tax Certificate containing
Nos. 11132201C-11132250C issued to you on June 13, 1997
and paid under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian.
7. Annex "G" — Certificate of Candidacy of respondent for the
position of Congressman in the 3rd District of Quezon City for
the 1995 elections filed with the Office of the Regional Election
Director, National Capital Region, on March 17, 1995, where, in
item 4 thereof, he wrote his birth date as December 22, 1953;
in item 8 thereof his "residence in the constituency where I
seek to be elected immediately preceding the election" as 3
years and 5 months; and, in item 9, that he is a registered voter
of Precinct No. 182, Barangay Balara, Quezon City;
8. Annex "H" — a copy of the APPLICATION FOR TRANSFER
OF REGISTRATION RECORDS DUE TO CHANGE OF
RESIDENCE of respondent dated August 30, 1997 addressed
to and received by Election Officer Mantil Alim, Alabel,
Sarangani, on September 22, 1997, stating among others, that
"[T]he undersigned's previous residence is at 24 Bonifacio
Street, Ayala Heights, Quezon City, III District, Quezon City;
wherein he is a registered voter" and "that for business and
residence purposes, the undersigned has transferred and
conducts his business and reside at Barangay Poblacion,
Alabel, Province of Sarangani prior to this application;"
9. Annex "I" — Copy of the SWORN APPLICATION FOR OF
CANCELLATION OF THE VOTER'S [TRANSFER OF]
PREVIOUS REGISTRATION of respondent subscribed and
sworn to on 22 October 1997 before Election Officer Mantil
Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied with the one-year residence
requirement and that he has been residing in Sarangani since January 1997. In support of the
said contention, DOMINO presented before the COMELEC the following exhibits, to wit:
1. Annex "1" — Copy of the Contract of Lease between Nora
Dacaldacal as Lessor and Administrator of the properties of
deceased spouses Maximo and Remedios Dacaldacal and
respondent as Lessee executed on January 15, 1997,
subscribed and sworn to before Notary Public Johnny P.
Landero;
2. Annex "2" — Copy of the Extra-Judicial Settlement of Estate
with Absolute Deed of sale executed by and between the heirs
of deceased spouses Maximo and Remedios Dacaldacal,
namely: Maria Lourdes, Jupiter and Beberlie and the
respondent on November 4, 1997, subscribed and sworn to
before Notary Public Jose A. Alegario;
3. Annex "3" — True Carbon Xerox copy of the Decision dated
January 19, 1998, of the Metropolitan Trial Court of Metro
Manila, Branch 35, Quezon City, in Election Case NO. 725
captioned as "In the Matter of the Petition for the Exclusion
from the List of voters of Precinct No. 4400-A Brgy. Old Balara,
Quezon City, Spouses Juan and Zorayda Domino, Petitioners,
-versus- Elmer M. Kayanan, Election Officer, Quezon City,
District III, and the Board of Election Inspectors of Precinct No.
4400-A, Old Balara, Quezon City, Respondents." The
dispositive portion of which reads:
1. Declaring the registration of petitioners as
voters of Precinct No. 4400-A, Barangay Old
Balara, in District III Quezon City as completely
erroneous as petitioners were no longer
residents of Quezon City but of Alabel,
Sarangani where they have been residing since
December 1996;
2. Declaring this erroneous registration of
petitioners in Quezon City as done in good faith
due to an honest mistake caused by
circumstances beyond their control and without
any fault of petitioners;
3. Approving the transfer of registration of
voters of petitioners from Precint No. 4400-A of
Barangay Old Balara, Quezon City to Precinct
No. 14A1 of Barangay Poblacion of Alabel,
Sarangani; and
4. Ordering the respondents to immediately
transfer and forward all the election/voter's
registration records of the petitioners in Quezon
City to the Election Officer, the Election
Registration Board and other Comelec Offices
of Alabel, Sarangani where the petitioners are
obviously qualified to excercise their respective
rights of suffrage.
4. Annex "4" — Copy of the Application for Transfer of
Registration Records due to Change of Residence addressed
to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated
August 30, 1997.
5. Annex "5" — Certified True Copy of the Notice of Approval of
Application, the roster of applications for registration approved
by the Election Registration Board on October 20, 1997,
showing the spouses Juan and Zorayda Bailon Domino listed
as numbers 111 and 112 both under Precinct No. 14A1, the
last two names in the slate indicated as transferees without
VRR numbers and their application dated August 30, 1997 and
September 30, 1997, respectively.
6. Annex "6" — same as Annex "5"
7. Annex "6-a" — Copy of the Sworn Application for
Cancellation of Voter's Previous Registration (Annex "I",
Petition);
8. Annex "7" — Copy of claim card in the name of respondent
showing his VRR No. 31326504 dated October 20, 1997 as a
registered voter of Precinct No. 14A1, Barangay Poblacion,
Alabel, Sarangani;
9. Annex "7-a" — Certification dated April 16, 1998, issued by
Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon
City, which reads:
This is to certify that the spouses JUAN and ZORAYDA
DOMINO are no longer registered voters of District III, Quezon
City. Their registration records (VRR) were transferred and are
now in the possession of the Election Officer of Alabel,
Sarangani.
This certification is being issued upon the request of Mr. JUAN
DOMINO.
10. Annex "8" — Affidavit of Nora Dacaldacal and Maria
Lourdes Dacaldacal stating the circumstances and incidents
detailing their alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of the
uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes,
Coraminda Lomibao and Elena V. Piodos subscribed and
sworn to before Notary Public Bonifacio F. Doria, Jr., on April
18, 1998, embodying their alleged personal knowledge of
respondent's residency in Alabel, Sarangani;
 12. Annex "8-e" — A certification dated April 20, 1998,
subscribed and sworn to before Notary Public Bonifacio,
containing a listing of the names of fifty-five (55) residents of
Alabel, Sarangani, declaring and certifying under oath that they
personally know the respondent as a permanent resident of
Alabel, Sarangani since January 1997 up to present;
13. Annexes "9", "9-a" and "9-b" — Copies of Individual Income
Tax Return for the year 1997, BIR form 2316 and W-2,
respectively, of respondent; and,
14. Annex "10" — The affidavit of respondent reciting the
chronology of events and circumstances leading to his
relocation to the Municipality of Alabel, Sarangani, appending
Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-
markings "G-1" and "G-2" and "H" his CTC No. 111`32214C
dated September 5, 1997, which are the same as Annexes "1",
"2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9-
b" except Annex "H". 5
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO
disqualified as candidate for the position of representative of the lone district of Sarangani for
lack of the one-year residence requirement and likewise ordered the cancellation of his
certificate of candidacy, on the basis of the following findings:
What militates against respondent's claim that he has met the residency
requirement for the position sought is his own Voter's Registration Record No.
31326504 dated June 22, 1997 [Annex "B", Petition] and his address indicated
as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence,
standing alone, negates all his protestations that he established residence at
Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It is highly
improbable, nay incredible, for respondent who previously ran for the same
position in the 3rd Legislative District of Quezon City during the elections of
1995 to unwittingly forget the residency requirement for the office sought.
Counting, therefore, from the day after June 22, 1997 when respondent
registered at Precinct No. 4400-A, up to and until the day of the elections on
May 11, 1998, respondent clearly lacks the one (1) year residency requirement
provided for candidates for Member of the House of Representatives under
Section 6, Article VI of the Constitution.
All told, petitioner's evidence conspire to attest to respondent's lack of
residence in the constituency where he seeks election and while it may be
conceded that he is a registered voter as contemplated under Section 12 of
R.A. 8189, he lacks the qualification to run for the position of Congressman for
the Lone District of the Province of Sarangani.
6
On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus
Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the
proclamation if winning, considering that the Resolution disqualifying him as candidate had not
yet become final and executory. 7
The result of the election, per Statement of Votes certified by the Chairman of the Provincial
Board of Canvassers,  shows that DOMINO garnered the highest number of votes over his
8
opponents for the position of Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May
1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence,
the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in
the main, that the COMELEC committed grave abuse of discretion amounting to excess or
lack of jurisdiction when it ruled that he did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order,
the Court directed the parties to maintain the status quo prevailing at the time of the filing of
the instant petition. 9
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate
receiving the second highest number of votes, was allowed by the Court to
Intervene.  INTERVENOR in her Motion for Leave to Intervene and in her Comment in
10
Intervention   is asking the Court to uphold the disqualification of petitioner Juan Domino and
11
to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections.
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court
of Quezon City declaring petitioner as resident of Sarangani
and not of Quezon City is final, conclusive and binding upon
the whole world, including the Commission on Elections.
 b. Whether or not petitioner herein has resided in the subject
congressional district for at least one (1) year immediately
preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over
the petition a quo for the disqualification of petitioner.
12
The first issue.
The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in
the exclusion proceedings declaring him a resident of the Province of Sarangani and not of
Quezon City is final and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code,
over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the
said jurisdiction, it is within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of candidacy, that will include,
among others, the residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings
as to the right of DOMINO to be included or excluded from the list of voters in the precinct
within its territorial jurisdicton, does not preclude the COMELEC, in the determination of
DOMINO's qualification as a candidate, to pass upon the issue of compliance with the
residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are summary in
character. Thus, the factual findings of the trial court and its resultant conclusions in the
exclusion proceedings on matters other than the right to vote in the precinct within its territorial
jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or
exclusion proceedings may pass upon any question necessary to decide the issue raised
including the questions of citizenship and residence of the challenged voter, the authority to
order the inclusion in or exclusion from the list of voters necessarily caries with it the power to
inquire into and settle all matters essential to the exercise of said authority. However, except
for the right to remain in the list of voters or for being excluded therefrom for the particular
election in relation to which the proceedings had been held, a decision in an exclusion or
inclusion proceeding, even if final and unappealable, does not acquire the nature of res
judicata.  In this sense, it does not operate as a bar to any future action that a party may take
13
concerning the subject passed upon in the proceeding.  Thus, a decision in an exclusion
14
proceeding would neither be conclusive on the voter's political status, nor bar subsequent
proceedings on his right to be registered as a voter in any other election. 15
Thus, in Tan Cohon v. Election Registrar  we ruled that:
16
. . . It is made clear that even as it is here held that the order of the City Court
in question has become final, the same does not constitute res adjudicata as to
any of the matters therein contained. It is ridiculous to suppose that such an
important and intricate matter of citizenship may be passed upon and
determined with finality in such a summary and peremptory proceeding as that
of inclusion and exclusion of persons in the registry list of voters. Even if the
City Court had granted appellant's petition for inclusion in the permanent list of
voters on the allegation that she is a Filipino citizen qualified to vote, her
alleged Filipino citizenship would still have been left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its
jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and
ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old
Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within
the competence of the trial court, in an exclusion proceedings, to declare the challenged voter
a resident of another municipality. The jurisdiction of the lower court over exclusion cases is
limited only to determining the right of voter to remain in the list of voters or to declare that the
challenged voter is not qualified to vote in the precint in which he is registered, specifying the
ground of the voter's disqualification. The trial court has no power to order the change or
transfer of registration from one place of residence to another for it is the function of the
election Registration Board as provided under Section 12 of R.A. No. 8189.   The only effect
17
of the decision of the lower court excluding the challenged voter from the list of voters, is for
the Election Registration Board, upon receipt of the final decision, to remove the voter's
registration record from the corresponding book of voters, enter the order of exclusion therein,
and thereafter place the record in the inactive file.
18
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject
matter and cause of action are indispensable requirements for the application of said doctrine.
Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion
proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying
that he and his wife be excluded from the Voter's List on the ground of erroneous registration
while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by
private respondents against DOMINO for alleged false representation in his certificate of
candidacy. For the decision to be a basis for the dismissal by reason of  res judicata, it is
essential that there must be between the first and the second action identity of parties, identity
of subject matter and identity of causes of action.  In the present case, the aforesaid essential
19
requisites are not present. In the case of Nuval v. Guray, et al.,   the Supreme Court in
20
resolving a similar issue ruled that:
The question to be solved under the first assignment of error is whether or not
the judgment rendered in the case of the petition for the exclusion of Norberto
Guray's name from the election list of Luna, is res judicata, so as to prevent the
institution and prosecution of an action in quo warranto, which is now before
us.
The procedure prescribed by section 437 of the Administrative Code, as
amended by Act No. 3387, is of a summary character and the judgment
rendered therein is not appealable except when the petition is tried before the
justice of the peace of the capital or the circuit judge, in which case it may be
appealed to the judge of first instance, with whom said two lower judges have
concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his dual capacity
as qualified voter of the municipality of Luna, and as a duly registered
candidate for the office of president of said municipality, against Norberto
Guray as a registered voter in the election list of said municipality. The present
proceeding of quo warranto was interposed by Gregorio Nuval in his capacity
as a registered candidate voted for the office of municipal president of Luna,
against Norberto Guray, as an elected candidate for the same office.
Therefore, there is no identity of parties in the two cases, since it is not enough
that there be an identity of persons, but there must be an identity of capacities
in which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of
Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the litigation, or the
litigious matter was the exclusion of Norberto Guray as a voter from the
election list of the municipality of Luna, while in the
present que warranto proceeding, the object of the litigation, or the litigious
matter is his exclusion or expulsion from the office to which he has been
elected. Neither does there exist, then, any identity in the object of the
litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action was that Norberto
Guray had not the six months' legal residence in the municipality of Luna to be
a qualified voter thereof, while in the present proceeding of quo warranto, the
cause of action is that Norberto Guray has not the one year's legal residence
required for eligibility to the office of municipal president of Luna. Neither does
there exist therefore, identity of causes of action.
In order that res judicata may exist the following are necessary: (a) identity of
parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of
Lands, 39 Phil. 850). And as in the case of the petition for excluision and in the
present quo warranto proceeding, as there is no identity of parties, or of things
or litigious matter, or of issues or causes of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one year immediately
preceding the 11 May 1998 election as stated in his certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used in the law prescribing the
qualifications for suffrage and for elective office, means the same thing as "domicile," which
imports not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention.  "Domicile" denotes a fixed permanent
21
residence to which, whenever absent for business, pleasure, or some other reasons, one
intends to return.  "Domicile" is a question of intention and circumstances. In the consideration
22
of circumstances, three rules must be borne in mind, namely: (1) that a man must have a
residence or domicile somewhere; (2) when once established it remains until a new one is
acquired; and (3) a man can have but one residence or domicile at a time. 23
Records show that petitioner's domicile of origin was Candon, Ilocos
Sur   and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St.
24
Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the
position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner
is now claiming that he had effectively abandoned his "residence" in Quezon City and has
established a new "domicile" of choice at the Province of Sarangani.
A person's "domicile" once established is considered to continue and will not be deemed lost
until a new one is established.   To successfully effect a change of domicile one must
25
demonstrate an actual removal or an actual change of domicile; a bona fide intention of
abandoning the former place of residence and establishing a new one and definite acts which
correspond with the
purpose.   In other words, there must basically be animus manendi coupled with animus non
26
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual. 27
It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since
December 1996 was sufficiently established by the lease of a house and lot located therein in
January 1997 and by the affidavits and certifications under oath of the residents of that place
that they have seen petitioner and his family residing in their locality.
While this may be so, actual and physical is not in itself sufficient to show that from said date
he had transferred his residence in that place. To establish a new domicile of choice, personal
presence in the place must be coupled with conduct indicative of that intention. While
"residence" simply requires bodily presence in a given place, "domicile" requires not only such
bodily presence in that place but also a declared and probable intent to make it one's fixed and
permanent place of abode, one's home. 28
As a general rule, the principal elements of domicile, physical presence in the locality involved
and intention to adopt it as a domicile, must concur in order to establish a new domicile. No
change of domicile will result if either of these elements is absent. Intention to acquire a
domicile without actual residence in the locality does not result in acquisition of domicile, nor
does the fact of physical presence without intention. 29
The lease contract entered into sometime in January 1997, does not adequately support a
change of domicile. The lease contract may be indicative of DOMINO's intention to reside in
Sarangani but it does not engender the kind of permanency required to prove abandonment of
one's original domicile. The mere absence of individual from his permanent residence, no
matter how long, without the intention to abandon it does not result in loss or change of
domicile.   Thus the date of the contract of lease of a house and lot located in the province of
30
Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as
the reckoning period of the one-year residence requirement.
Further, Domino's lack of intention to abandon his residence in Quezon City is further
strengthened by his act of registering as voter in one of the precincts in Quezon City. While
voting is not conclusive of residence, it does give rise to a strong presumption of residence
especially in this case where DOMINO registered in his former barangay. Exercising the right
of election franchise is a deliberate public assertion of the fact of residence, and is said to
have decided preponderance in a doubtful case upon the place the elector claims as, or
believes to be, his residence.  The fact that a party continously voted in a particular locality is
31
a strong factor in assisting to determine the status of his domicile.
32
His claim that his registration in Quezon City was erroneous and was caused by events over
which he had no control cannot be sustained. The general registration of voters for purposes
of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15,
21, and 22. 33
While, Domino's intention to establish residence in Sarangani can be gleaned from the fact
that be bought the house he was renting on November 4, 1997, that he sought cancellation of
his previous registration in Qezon City on 22 October 1997,  and that he applied for transfer of
34
registration from Quezon City to Sarangani by reason of change of residence on 30 August
1997,  DOMINO still falls short of the one year residency requirement under the Constitution.
35
In showing compliance with the residency requirement, both intent and actual presence in the
district one intends to represent must satisfy the length of time prescribed by the fundamental
law.  Domino's failure to do so rendered him ineligible and his election to office null and void.
36 37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of
merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election
Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy.
Such jurisdiction continues even after election, if for any reason no final judgment of
disqualification is rendered before the election, and the candidate facing disqualification is
voted for and receives the highest number of votes  and provided further that the winning
38
candidate has not been proclaimed or has taken his oath of office. 39
It has been repeatedly held in a number of cases, that the House of Representatives Electoral
Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and
qualifications of members of Congress as provided under Section 17 of Article VI of the
Constitution begins only after a candidate has become a member of the House of
Representatives.  40
The fact of obtaining the highest number of votes in an election does not automatically vest the
position in the winning candidate.  A candidate must be proclaimed and must have taken his
41
oath of office before he can be considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone
Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus
Resolution issued by the COMELEC on the day of the election ordering the suspension of
DOMINO's proclamation should he obtain the winning number of votes. This resolution was
issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying
DOMINO as candidate for the position.
Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone to disenfranchise the electorate without any fault on their part and to undermine the
Congressional District of the Province of Sarangani he cannot be deemed a member of the importance and meaning of democracy and the people's right to elect officials of their choice. 51

House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which
has jurisdiction over the issue of his ineligibility as a candidate.
42
INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot
be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case  to wit: if the
52

Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate for the position of representative of the
province of Sarangani, may INTERVENOR, as the candidate who received the next highest
number of votes, be proclaimed as the winning candidate?
It is now settled doctrine that the candidate who obtains the second highest number of votes
may not be proclaimed winner in case the winning candidate is disqualified.  In every election,
43
the people's choice is the paramount consideration and their expressed will must, at all times,
be given effect. When the majority speaks and elects into office a candidate by giving the
highest number of votes cast in the election for that office, no one can be declared elected in
his place. 44
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the majority of which have
electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety, would nevertheless cast their votes in favor of the
ineligible candidate, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be deemed elected, is
misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as
an ineligible candidate. Although the resolution declaring him ineligible as candidate was
rendered before the election, however, the same is not yet final and executory. In fact, it was
no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed
DOMINO to be voted for the office and ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for
DOMINO are presumed to have been cast in the sincere belief that he was a qualified
candidate, without any intention to misapply their franchise. Thus, said votes can not be
treated as stray, void, or meaningless.53

positively declared through their ballots that they do not choose him.  To simplistically assume
45

that the second placer would have received the other votes would be to substitute our WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the
judgment for the mind of the voters. He could not be considered the first among qualified COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are
candidates because in a field which excludes the qualified candidate, the conditions would hereby AFFIRMED. 1âwphi1.nêt

have substantially changed. 46

SO ORDERED.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election.
47

The effect of a decision declaring a person ineligible to hold an office is only that the election
fails entirely, that the wreath of victory cannot be transferred  from the disqualified winner to
48

the repudiated loser because the law then as now only authorizes a declaration of election in
favor of the person who has obtained a plurality of votes  and does not entitle the candidate
49

receiving the next highest number of votes to be declared elected. In such case, the electors
have failed to make a choice and the election is a nullity.  To allow the defeated and
50

repudiated candidate to take over the elective position despite his rejection by the electorate is
 This is a complaint filed by Datu Inocencio Siawan against Judge Aquilino. A. Inopiquez, Jr. of
the Municipal Circuit Trial Court, Kananga-Matag-ob, Leyte, for gross ignorance of the law,
gross abuse of power, and misconduct in connection with the latter's handling of a criminal
case and two election cases for inclusion of voters. Originally, two identical complaints against
respondent were filed. The first was referred to this Court by the Department of Justice, the
National Bureau of Investigation, the Commission on Elections, and the Government Service
Insurance System, while the second one, O.C.A. I.P.I. No. 95-54-MTJ, was referred to this
Court by the Office of the President.

O.C.A. I.P.I. No. 95-54-MTJ was dismissed by the First Division on October 25, 1995, 1 On the
other hand, O.C.A. I.P.I. No. 95-25-MTJ was redocketed as Administrative Matter No. MTJ-95-
1056 and referred by the Second Division to Acting Executive Judge Fortunato 2 L. Madrona of
the Regional Trial Court of Ormoc City, Leyte, for investigation, report, and recommendation
on October 16, 1996.3

On September 15, 1997, Investigating Judge Fortunito L. Madrona submitted his report. 4 With
respect to Criminal Case No. 584, entitled "People of the Philippines v. Julia Enriqua Seco,"
the Investigating Judge found the following facts:

(1) In Crim. Case No. 584 entitled People of the Philippines vs. Julia Enriqua Seco . . .,
the accused then was charged of Usurpation of Authority and Official Functions under
Art. 177 of the Revised Penal Code, involving, as the complaint states, a "paquiao"
contract in which the accused Julia Seco allegedly signed as the Barangay Captain of
Brgy. Cansuso, Matag-ob, Leyte;

(2) In the course of the proceedings after the prosecution had already presented its
witnesses, the complaint was dismissed on the basis of an Affidavit of Desistance
executed by complainant Restituto C. Pedrano which was prepared and executed
before Provincial Prosecutor Rosario D. Beleta on June 4, 1992 (Exh. "R"). This
Affidavit of Desistance is opposite to the earlier affidavit of the same complainant
dated March 17, 1997 ... which was made the basis of the Complaint;
A.M. No. MTJ-95-1056       May 21, 2001 (3) On the basis of the Affidavit of Desistance the respondent issued the Order dated
December 22, 1992 dismissing the case (Exh. "S");
DATU INOCENCIO C. SIAWAN, complainant,
vs. (4) Prior to the issuance of the Affidavit of Desistance that is on May 20, 1987,
JUDGE AQUILINO A. INOPIQUEZ, JR., respondent. accused Julia Enriqua Seco had filed before the Municipal Circuit Trial Court a Motion
for Inhibition of the Presiding Judge now respondent in this case (Exh. "Q"). The meat
MENDOZA, J.: of this motion for inhibition is that the father-in-law of the Presiding Judge, herein
respondent, was conspicuously present in the proceedings during which time he gave
consultation to the complainant who was reportedly his political leader and protegee.
The accused herself signed the motion with "conforme" of a certain Atty. Camilo
Superable acting as counsel;
(5) The Motion for Inhibition was denied by the Presiding Judge, herein respondent;
(6) The accused after the dismissal of the case sued Restituto C. Pedrano in a
separate civil action for damages (docketed as Civil Case No. 3167-0 before the RTC,
Ormoc City and now elevated to the Court of Appeals as CA-G.R. CV No. 51495), as a
result of which the latter, through an Omnibus Motion (Exh. "T") dated November 4,
1993 or about a year after the dismissal of Criminal Case No. 584, filed by Atty.
Eusebio Otadoy, Jr. who acted as counsel and private prosecutor, wanted to revive the
case against accused Julia Enriqua Seco;
(7) Then accused Seco herself filed Opposition to Omnibus Motion dated November
26, 1993 (Exh. "U") stating, among others, the grounds that (a) the lower court has no
more jurisdiction as the assailed order was long final and (b) the motion was only
signed by the private prosecutor with no authority from the public prosecutor to file
such kind of pleading;
(8) Respondent as Presiding Judge issued the Order dated January 20, 1994 (Exh.
"V") ordering the withdrawal from the records of the affidavit of Restituto Pedrano
dated June 4, 1992 (the desistance) and recalling the Order of the Court dated
December 22, 1992 (which is for dismissal) and reinstating the case in the court's
calendar;
(9) Because of the reinstatement, the accused through her daughter, Mrs. Lilia
Tordillo, requested the fixing of the bail bond, which in the Order of the Court dated
February 24, 1994 (Exh. "W") was fixed at P4,000.00;
(10) The Order of respondent (Exh. "W") shows a warrant of arrest must have been
issued against complainant, then accused Seco in connection with Criminal Case No.
584. This was testified to by her during the hearing (TSN of April 29, 1997, pp. 56-57)
although respondent through counsel stated that the record of the case is "bereft of
warrant of arrest" (Ibid, p. 65);
(11) Respondent reconsidered the previous Order by issuing the Order dated March
29, 1994 (Exh. "X"). In this latter Order, he voluntarily inhibited himself from further
taking cognizance of the case for reasons of delicadeza;
(12) Obviously because of the statement in respondent's Order of March 29, 1994 (see
last sentence, first paragraph, page 2 thereof) herein quoted as follows:
If ever the private complainant wants to [revive], the case he should refile the
case [anew]. Anyway the crime has not yet [prescribed] and double jeopardy
will not come in for the accused in the instant case had not been [arraigned].
a complaint denominated as Criminal Case No. 1181 (Exh. "Y") was filed by the same
complainant, Restituto Pedrano, before the same Municipal Circuit Trial Court of
Kananga-Matag-ob, Leyte of respondent judge against the same accused and
involving the same offense.
(13) The complaint in Criminal Case No. 1181 (Exh. "Y") in substance, is the same as
the complaint in Criminal Case No. 584 (Exh. "O") . . . All supporting affidavits except
the complaint affidavit of Pedrano, were all reproduced from the previous complaint in
Criminal Case No. 584 (TSN of June 16, 1997, pp. 28-29);
(14) The new complaint re Criminal Case No. 1181 was filed April 21, 1994 (supra, p.
30). About a week later, or on April 28, 1994, respondent Judge issued the Order . . .
inhibiting himself from trying the case (Exh. "6") on the ground that "the counsel for the
offended party is related to the Presiding Judge";
(15) The Order of inhibition, however, was denied by the Regional Trial Court, Ormoc
City in an Order dated September 1, 1994 (Exh. "7") and soon thereafter, respondent
judge in an Order dated September 5, 1994 dismissed Criminal Case No. 1181. The
principal reason given for the dismissal is the admission by respondent that the case
"had been filed by the offended party without however the intervention of the public
prosecutor or the station commander. The crime of Usurpation of Authority and Official
Function is a public offense and the offended party is the People of the Philippines. It
appears that the instant case has been instituted not by the proper party." (Exh. "VV"
and Exh. "9").
(16) A Motion For Reconsideration re the Order of dismissal was filed by the private
complainant to which the respondent judge directed accused's counsel, to file
comment to the motion despite the fact she was not yet arrested or that the Court had
not yet acquired jurisdiction over her body (TSN, supra, p. 34 et seq. Cf. P. 37);
(17) The respondent judge issued the Order of November 14, 1994 (Exh. "8") denying
the motion for reconsideration;
 (18) A second motion for reconsideration was again filed by the private complainant
and the respondent in an Order dated December 23, 1994 (Exh. "SS") directed anew
the accused's counsel for another comment;
(19) Atty. Custodio Cañete complied and filed his comment dated December 26, 1994
and a supplemental comment dated February 6, 1995 (Exh. "TT") stating among
others that the counsel is not the lawyer representing the then accused (herein
complainant) in Criminal Case No. 1181 whom the Court had not yet acquired
jurisdiction in the first place;
(20) Criminal Case No. 1181 was finally laid to rest on February 17, 1995 as per
admission of complainant (TSN, April 29, 1997, pp. 57-58). 5
As regards the election cases decided by respondent, the Investigating Judge found the
following:
(1) Respondent is the Presiding Judge of the Municipal Circuit Trial Court of Kananga-
Matag-ob, Leyte, residing in Brgy. Riverside, Matag-ob, Leyte (TSN of June 3, 1997, p.
19).
(2) Respondent has had relatives who ran for public office while he assumed as such
presiding judge. His brother-in-law Edgardo Laurente ran for Mayor during the January
18, 1988 elections but lost to complainant Michael L. Torrevillas (TSN of April 15,
1997, pp. 63-64). His son, Van Russel, ran for SK Chairman of Brgy. Riverside and
won on the December 4, 1992 election. His daughter, Cheri May, also ran for the
position of Chairman of the Sangguniang Kabataan of Brgy. Riverside on May
complainant. The fact thus stands out that there was no such petition for inhibition filed
against the respondent in the inclusion and exclusion cases filed in the latter's sala. 6
On the basis of these facts, Judge Madrona found respondent guilty of grave abuse of official
functions and/or oppression and recommended that he be fined the sum of P15,000.00 and/or
suspended for a period of six months. 7 On March 15, 1999, the Office of the Court
Administrator submitted its report likewise finding that respondent judge mishandled Criminal
Case No. 584 and recommended that respondent judge be fined P15,000.00, with warning
that repetition of the same or similar offense in the future will be dealt with more severely. 8
We find both recommendations to be well taken.
Re Criminal Case No. 584
Complainant's counsel in Criminal Case No. 584 was Atty. Eusebio Otadoy, Jr. 9 Respondent
admits that he is related to Atty. Otadoy whose maternal surname is in fact Inopiquez, but
respondent claims he could not trace who among their forefathers were related. He claims that
he and counsel are not even second cousins.10
Although respondent is not related within the fourth degree of consanguinity or affinity to Atty
Otadoy, the evidence shows that because of his relationship not only to Atty Otadoy but also
to those helping the complainant, Restituto Pedrano, one of whom, Guillermo Laurente, is
respondent's father-in-law, while the other one, Atty. Felix Sun, is his brother-in-law,
respondent judge acted with obvious partiality for complainant in the criminal case. It must be
recalled that the accused Julia Enriqua Seco, who was charged on March 19, 1987 with
usurpation of authority and official functions, moved on May 20, 1987 for the disqualification of
respondent on the ground that Atty. Sun, respondent's brother-in-law, was actively
participating in the prosecution of the case, while Guillermo Laurente, respondent's father-in-
law, was often present during the trial because the complainant therein, Restituto Pedrano,
was his political protégée.11
Without addressing the issues raised by accused Seco, respondent denied her motion for
inhibition in his order, dated May 22, 1987, on the pretext that the motion was filed with the
assistance of Atty. Camilo A. Superable, who was then not the counsel of record of accused
Seco.12 Apparently realizing that the motion for disqualification was meritorious, respondent,
after partially hearing the case, dismissed it on the basis of an affidavit of desistance of the
complainant, Restituto Pedrano. But, as Seco sued Pedrano for damages for filing the criminal
case, respondent judge ordered the withdrawal of Pedrano's affidavit of desistance from the
record and recalled his order dismissing the criminal case. Respondent then revived Criminal
Case No. 584 only to dismiss it again, saying the complainant in the criminal case could
always refile it. He then inhibited himself on the ground of delicadeza citing his relationship to
counsel for the private prosecutor. 13 When Criminal Case No. 1181 was filed against accused
Seco, based on the same facts as Criminal Case No. 584, respondent, to whom the case was
again assigned, issued an order, dated April 28, 1994, inhibiting himself, reiterating that he is
related to the private prosecutor.14
Thus, respondent could have recused himself from the moment his disqualification was sought
by the accused Julia Enriqua Seco in Criminal Case No. 594. Apparently, he later realized it
was untenable for him to continue hearing the criminal case not only because of his
relationship to Atty. Otadoy but also to Atty. Felix Sun and Edgardo Laurente, both of whom
were his brothers-in-law,15 who were actively participating in the prosecution of the criminal
case. Respondent hung on to the case as long as he could until this case was filed against
him. It is noteworthy that the order of respondent finally inhibiting himself from trying Criminal
Case No. 584was issued only on March 29, 1994, after the herein letter-complaint of Datu
Siawan, dated March 24, 1994, had already been prepared and drafted. Indeed, it is too much
of a coincidence that respondent judge's decision to recuse himself in Criminal Case No. 584
and Criminal Case No. 1181 came only after the filing of this case against him.
Indeed, although the disqualification of judges is limited only to cases where the judge is
related to counsel within the fourth degree of consanguinity or affinity, the Rules nonetheless
provide that a judge may, in the exercise of his discretion, disqualify himself from sitting in a
case for other just and valid reasons. 16 A judge should not handle a case where he might be
perceived, rightly or wrongly, to be susceptible to bias and impartiality, which axiom is
intended to preserve and promote public confidence in the integrity and respect for the
judiciary.17 In this case, the refusal of respondent to inhibit himself from the conduct of the case
and his doing so only after being threatened with an administrative case could not but create
the impression that he had ulterior motives in wanting to try the case.
Indeed, it was even error for him to dismiss Criminal Case No. 584 on the basis of the affidavit
of desistance of Restituto Pedrano without determining whether the affidavit was voluntarily
executed. Then, as already stated, because Seco sued Pedrano for damages, respondent
reinstated the criminal case based on the latter's omnibus motion even if it had already been
almost a year after he had dismissed it, because allegedly such would not anyway constitute
double jeopardy as the accused Seco had not yet been arraigned. However, respondent
admits that when he dismissed the case, the prosecution had already presented its
evidence.18 This means that the accused Seco had been already arraigned at the time the
case against her was dismissed, so that its refiling subsequently placed her in jeopardy of
being twice punished for the same offense.
It is obvious that respondent got entangled in his own maneuverings in his desire to favor and
protect the complainant Restituto Pedrano and those helping the latter. As the Court
Administrator well observed in his memorandum to the Court:
Indeed, respondent's bias towards the private complainant showed when he allowed
his father-in-law to advise the private complainant, who is said to be his political leader
during the proceedings held in Crim. Case No. 584. It must have been disconcerting
on the part of the accused to see the private complainant openly consulting the father-
in-law of the person sitting in judgment of his case.
To maintain the appearance of impartiality in his court, at the first instance, respondent
should have stopped his father-in-law from meddling in the proceedings. If he did not
want to offend or displease him, he should have outrightly inhibited himself from further
trying the case. However, he even denied the motion for inhibition filed by the accused.
It may also be added that a well-meaning judge may not just order the reopening of an
already dismissed criminal case or direct the removal of a vital evidence on record
without first going over the record of the case. But, a judge whose mind is set to favor
a party-litigant may literally turn a blind eye to the proceedings which already
transpired and the applicable law and jurisprudence on the case before him.
We are referring to the irregular actuations of respondent in the same Crim. Case No.
584 wherein he granted the motion of the private prosecutor to withdraw or detach the
Affidavit of Desistance executed by the private complainant 1) without the approval of
the private prosecutor; 2) despite the fact that the dismissal of the case was already
final; and 3) stating in the order that the accused was not yet arraigned, when the truth
is the prosecution has already rested when the case was dismissed on December 22,
1992. It cannot be said that respondent overlooked these facts because the accused
filed a timely opposition to the motion.
Respondent's apparent irregular actuations were calculated to give the private
complainant a leverage in the civil action for damages filed by the accused Seco
before the Regional Trial Court – on the basis of the affidavit of desistance executed
by the private complainant.
Respondent's deliberate mishandling of the case erodes the people's faith in the
judiciary. There being nothing on record showing that complainant was deprived of her
liberty as a consequence of respondent's indiscretions, a fine imposed upon him may
be appropriate under the premises.19
Re Election Case Nos. 333 and 292
The first case was a petition for inclusion of a voter in the voter's list. Respondent judge admits
that the petitioner, retired Judge Ponciano C. Inopiquez, Sr., is his uncle. 20 Nonetheless, he
justifies his failure to recuse himself on the ground that the petition of Ponciano C. Inopiquez,
Sr. was meritorious. Respondent claims that a hearing was conducted on February 28, 1992
during which Ponciano C. Inopiquez, Sr. testified to prove that he was a resident of Brgy.
Talisay, Matag-ob, Leyte.21
Respondent judge's contention is without merit. Rule 137, §1 of the Rules of Court provides:
No judge or judicial officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to
either party within the sixth degree of consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of civil law, or in which he has been
 executor, administrator, guardian, trustee or counsel, or in which he has presided in
any inferior court when his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those mentioned above.
Similarly, Rule 3.12 of the Code of Judicial Conduct provides:
A judge should take no part in a proceeding where the judge's impartiality might
reasonably be questioned. These cases include, among others, proceedings where:
....
(d) the judge is related by consanguinity or affinity to a party litigant within the sixth
degree or to counsel within the fourth degree;
....
In every instance the judge shall indicate the legal reason for inhibition.
Under these provisions, respondent judge was disqualified from hearing the petition of his
uncle and it was immaterial that the petition was meritorious. The purpose of the prohibition is
to prevent not only a conflict of interest but also the appearance of impropriety on the part of a
judge. A judge should take no part in a proceeding where his impartiality might reasonably be
questioned and he should administer justice impartially and without delay. 22 The failure of
respondent judge to inhibit himself constitutes an abuse of his authority and undermines public
confidence in the impartiality of judges.
Nor is it true respondent decided the election cases solely on the basis of their merits. The
records show that he disregarded the provisions of the Omnibus Election Code (B.P. Blg.
881).
In Election Case No. 333, the petitioner, respondent's uncle, Ponciano C. Inopiquez, alleged
that he was a resident of Barangay. Talisay, Matag-ob, Leyte; that he had the qualifications of
a voter and none of the disqualifications; that he had not voted for two consecutive elections in
Metro Manila; that he was unable to register in Barangay Talisay, Matag-ob, Leyte, because
he could not book a plane for Leyte on that day; and that it was his intention to vote in Leyte as
he was already retired as judge of the Regional Trial Court, Branch 4, of Manila. 23 In Election
Case No. 292, on the other hand, the seven petitioners, all surnamed Herbas, alleged that
they had been residents of Barangay San Sebastian, Matag-ob, Leyte for two years at the time
of the petition; that they were refused registration on February 1, 1992 at Brgy. San Sebastian,
Matag-ob, Leyte by the Board of Election Inspectors; and that they have not voted for two
consecutive elections.24
The Omnibus Election Code (B.P. Blg. 881), as amended by P.D. No. 1896, provides,
however, that:
Sec. 139. Petition for inclusion of voters in the list. – Any person whose application for
registration has been disapproved by the board of election inspectors or whose name
has been stricken out from the list may apply, within twenty days after the last
registration days, to the proper municipal or metropolitan trial court, for an order
directing the board of election inspectors to include or reinstate his name in the list,
together with the certificate of the board of elections inspectors regarding his case and
proof of service of notice of his petition upon a member of the board of election
inspectors with indication of the time, place, and court before which the petition is to be
heard.
Thus, under the law, a petition for inclusion may be filed only by a person (a) whose
application for registration has been disapproved by the board of election inspectors or (b)
whose name has been stricken out from the list of voters. No exception is provided by the law.
The petition of former Judge Ponciano C. Inopiquez does not fall within the coverage of the
law, since he was neither refused registration by the board nor his name ordered stricken from
the list of voters of Barangay Talisay, Matag-ob, Leyte. Whether or not Ponciano Inopiquez
had good reason for his failure to register as a voter was irrelevant. Otherwise, every person
who is unable to register for whatever reason, i.e., he or she was working in another province
or was out of the country during the registration period, could simply file a petition for inclusion
in order to be able to vote.
The Omnibus Election Code further provides:
Section 143. Common rules governing judicial proceedings in the matter of inclusion,
exclusion, and correction of names of voters. --- (a) Outside of regular office hours, no
petition for inclusion, exclusion, or correction of names of voters shall be received.
(b) Notices to the members of the board of election inspectors and to challenged
voters shall state the place, day and hour in which such petition shall be heard, and
such notice may be made by sending a copy thereof by registered mail or by personal
delivery or by leaving it in the possession of a person of sufficient discretion in the
residence of the said person or, in the event that the foregoing procedure is not
 practicable, by posting a copy in a conspicuous place in the city hall or municipal
building and in two other conspicuous places within the city or municipality, at least ten
days prior to the day set for the hearing.
(c) Each petition shall refer to only one precinct.
(d) No costs shall be assessed in these proceedings. However, if the court should be
satisfied that the application has been filed for the sole purpose of molesting the
adverse party and causing him to incur expenses, it may condemn the culpable party
to pay the costs and incidental expenses.
(e) Any candidate who may be affected by the proceedings may intervene and present
his evidence.
(f) The decision shall be based on the evidence presented. If the question is whether
In Villaluz v. Mijares,27 a judge was fined P10,000.00 for trying and deciding the petition for
correction of entry filed by her grandson. On the other hand, in the case
of Pacris v. Pagalilauan,28 the respondent judge therein was found guilt of gross ignorance of
the law for having violated or failed to apply relevant provisions of the Omnibus Election Code
and was fined P10,000.00. In this case, however, respondent did not simply fail to recuse
himself from cases in which his relatives were either involved or interested, the record shows
he did so to favor or protect the parties. Considering that respondent was previously censured
and warned by this Court for grave abuse of discretion and gross ignorance of the law, we
hold that a fine of P20,000.00 and suspension for three (3) months without pay would be an
appropriate penalty in view of respondent's violation of Rule 137 of the Rules of Court and his
abuse of authority.29
WHEREFORE, respondent Judge Aquilino A. Inopiquez, Jr. is hereby ORDERED to pay a fine
of P20,000.00 for violation of Rule 137 of the Rules of Court and is SUSPENDED without pay
for a period of three months for abuse of authority and ignorance of the law.
1âwphi1.nêt

or not the voter is real or fictitious, his non-appearance on the day set for hearing shall
be prima facie evidence that the registered voter is fictitious. In no case shall a SO ORDERED.
decision be rendered upon a stipulation of facts.

(g) These applications shall be heard and decided without delay. The decision shall be
rendered within six hours after the hearing and within ten days from the date of its filing
in court. Cases appealed to the regional trial court shall be decided within ten days
from receipt of the appeal in the office of the clerk of court. In any case, the court shall
decide these petitions not later than the day before the election and the decision
rendered thereon shall be immediately final and executory, notwithstanding the
provision of Section 138 on the finality of decisions.

The records show that neither of the petition in Election Case No. 333 25 and Election Case No.
29226 named the board of election inspectors a party to the proceedings. Nor is there any
showing that the board of election inspectors was ever notified of hearings to be conducted on
such inclusion proceedings either by registered mail or by personal delivery, or by notice
posted in a conspicuous place in the city hall or municipal building and in two other
conspicuous places within the city or municipality at least 10 days prior to the day set for the
hearing as required in paragraph (b) of the above provision.

The failure of respondent to observe the requirements of the Election Code is inexcusable. As
a judge of the Municipal Circuit Trial Court vested with the jurisdiction to hear and decide
petitions for inclusion or exclusion of voters, he is expected to be familiar with these
requirements because it can be assumed that these election cases were not the first cases he
has decided.
 BUENA, J.:

Way back in the 1950's and during the martial law era, it has been said that even the dead, the
birds and the bees voted in Lanao. This petition for certiorari under Rule 65 of the Rules of
Court which seeks to nullify the Order issued by the Commission on Elections [COMELEC, for
brevity] dated June 29, 1998, finding Padian Torogan in Madalum, Lanao Del Sur as "ghost
precinct," is an illustrative case.

The facts are as follows:

On September 15, 1997, a petition for annulment of several precincts and annulment of book
of voters in Madalum, Lanao Del Sur was filed with the COMELEC by, among others, Hadji
Oblais R. Omar thru counsel Atty. Nasib D. Yasin, herein private respondents. Among the
precincts sought to be annulled was Padian Torogan, subject matter of the present petition
for certiorari. 1

On September 18, 1997, the COMELEC, thru the Clerk of the Commission sent telegrams to
the respective Board of Election Inspectors (BEI) of the questioned precincts in Madalum,
Lanao Del Sur, including Padian Torogan, to file their answer to the petition for abolition of
precincts and annulment of book of voters. 2

On October 31, 1997, the incumbent mayor of Madalum, Lanao Del Sur, Usman T. Sarangani,
herein petitioner, together with other oppositors who were allegedly barangay chairmen of the
twenty three (23) barangays the "Books of Voters" and precincts of which were sought to be
annulled and abolished, respectively, filed an "Answer in Opposition" which included the
3 

affidavits of the barangay chairmen of the affected precincts attesting to the fact that the move
to annul the book of voters and abolish the questioned election precincts were for the purpose
of diminishing the bailiwicks of the incumbent mayor of Madalum, Lanao del Sur.  4

After hearing and submission of formal offer of exhibits and memoranda by the parties, the
COMELEC issued an Order  dated February 11, 1998, referring the case to its Law
5 

G.R. No. 135927              June 26, 2000
Department for appropriate investigation. The COMELEC Law Department conformably issued
a memorandum dated April 29, 1998 directing Atty. Muslemin Tahir, the Provincial Election
Supervisor of Marawi City, Lanao del Sur "to conduct a rigorous incisive investigation on the
alleged ghost precincts and thereafter submit a report on the investigation
conducted." Consequently, Atty. Tahir created a TASK FORCE INVESTIGATION TEAM by
6 

SULTAN USMAN SARANGANI, SORAIDA M. SARANGANI and HADJI NOR virtue of a memorandum dated June 13, 1998 directing Election Officers Casan Macadato,
HASSAN, petitioners, Sacrain Guro and Anuar Datudacula "to conduct ocular inspection on the alleged twelve (12)
vs. ghost barangays in the Municipality of Madalum, Lanao Del Sur."  7

COMMISSION ON ELECTIONS and HADJI ABOLAIS R. OMAR, MANAN OSOP and ATTY.
NASIB D. YASSIN, respondents.
On June 18, 1998, an ocular inspection was conducted on the alleged ghost precincts yielding
the following results —
At 12:10 pm, the Task Force Investigation Team from the COMELEC accompanied by
traditional leaders, political leaders, many concerned residents of this town, a
representative from the Lanao del Sur Provincial Statistics Office, Mr. Lacson
Abdullah, and a Team from the DILG-ARMM, Lanao del Sur, arrived in the area
supposedly Barangay Padian Torogan with these comments and observations:
It appears that in this area there are only two structures: One is a concrete house with
no roof, and the other is a wooden structure without walls and roof. This obviously
mean that no single human being could possibly reside in these two structures.
Also, it came out that the name Padian-Torogan means a cemetery not a residential
place. So this contradicts the records being brought by the COMELEC Team from the
Census saying that the area has 45 households with a total population of 285. (Ref.
Municipal census Report as of September 1, 1995).
Besides, no less than the Chairman of the COMELEC Investigating Team asked the
people around who among them is a resident or a registered voter in the so-called
Barangay Padian-Torogan, and no one answered affirmatively.
Then at 12:50 PM, the COMELEC Investigating Team still with the people mentioned
above are in Barangay Lumbac to look for the other supposed Barangay named
Rakutan, and found this observations.
x x x           x x x          x x x
By the way, unfortunately, at the peak of this ocular inspection, the Madalum Municipal
Chief of Police Mahdi Mindalano, armed with UZI pistolized Machine Gun, arrived at
the scene at exactly 12:55 pm boarding an orange Mitsubishi car with four armed
bodyguards, the (sic) confronted the Team Leader of the COMELEC Investigating
Group and angrily insisted to stop the ocular inspection.
This STACOM Mindalano, in warning a photographer not to take a shot on him,
pointed his pistolized Rifle to this man when the photographer positioned his camera to
take a picture of him while he is arguing with the investigating leader, Mr. CASAN
MACADATO.
Moving camera film and several pictures are added hereto for further information and
as exhibits. Also attached hereof are the names and signatures of among the more-or-
less one hundred people who observed the conduct of this ocular inspection.
(NOTE: This writer, Mr. Khalil Y. Alawi, is a member of the five (5) man Committee
from the DILG-ARMM, Lanao del Sur created in respect to the Memo/Invitation from
the COMELEC Provincial Office of Lanao del Sur dated June 15, 1998 signed by Mr.
CASAN MACADATO, EO II, Chief Investigation Team. Mr. Macadato designated
verbally and in public Mr. ALAWI to be his Secretary during this investigation, and of
course, the (sic) with the consent of the DILG Team). 1âwphi1.nêt
I hereby certify that the foregoing are true and correct to the best of my knowledge.
Prepared by: (sgd) Khalil Y. Alawi
Member, DILG Team
Submitted by: (sgd) Casan Macadato
Election Officer II
Chairman, Task Force Investigation Team 8
On the basis of the foregoing, Election Officer Casan Macadato submitted to the Provincial
Election Supervisor of COMELEC in Marawi City its 1st Indorsement dated June 19, 1998
reporting the results of the ocular inspection that Padian Torogan and Rakutan were
uninhabited.
9
On June 29, 1998, the COMELEC issued the assailed Order finding "Padian Torogan as ghost
precinct." The dispositive portion of the COMELEC Order reads:
ACCORDINGLY, the Commission En Banc:
(1) resolves to GRANT the request and hereby:
(a) DIRECTS the Task Force Investigating Team created pursuant to
the Order of the Commission en banc dated February 11, 1998, to
continue the conduct of ocular inspection and investigation as
 contained in the original directive of the Law Department dated April
29, 1998;
(b) RECOMMENDS to the PNP Director and the Regional Director of
the Philippine National police, (1) to immediately relieve and transfer
Chief of Police Mahdi Mindalano of Madalum, Lanao del Sur and
transfer him to an area where it will be extremely difficult for him to
return to Mandalum and do further damage to effort of the Commission
to investigate ghost precincts in said area considering the urgency of
said investigation. (2) to look into the possibility of involvement of other
policement (sic) in Madalum in the aforestated criminal mischief of the
Police Station Commander or their possible partisanship.
(c) RECOMMENDS to AFP Regional Command, Armed Forces of the
Philippines, to immediately assign sufficient number of men to maintain
peace and order in the Municipality of Madalum, Lanao del Sur, and to
escort and secure the safety of the COMELEC Investigating Team
during the conduct of ocular inspections and investigations.
(2) finds Padain Togoran as ghost precinct and shall be excluded from the
special election to be conducted in Madalum.
(3) Order the Investigating Team, thru Madatu, to immediately resume the
investigation, the remaining ghost precincts in Madalum and to submit its
findings to the Commission with dispatch, allowing it to submit partial findings if
necessary.
The Law Department of this Commission is hereby directed to implement this order.
SO ORDERED. (emphasis supplied)  10
On November 3, 1998, Sultan Usman Sarangani, Soraida M. Sarangani and Hadji Nor
Hassan, in their respective capacity as former Municipal Mayor, incumbent Mayor and Vice-
Mayor of Madalum filed the instant petition for certiorari and mandamus urging us to nullify the
Order issued by the COMELEC, for having been issued with grave abuse of discretion.
Likewise, petitioners moved to consolidate this case with G.R. No. 134456 entitled "Sultan
Sarangani, et. al vs. COMELEC, et. al" alleging that G.R. No. 134456 also involves a
COMELEC decision declaring the precinct corresponding to eight (8) barangays in Madalum,
Lanao del Sur as ghosts precincts.
In a resolution  issued by this Court on January 19, 1999, we denied the motion to
11 
consolidate, considering that G.R. No. 134456 had already been dismissed in our resolutions
of August 4, 1998 and August 18, 1998.
The basic issue to be resolved in this petition is whether or not the respondent COMELEC
committed grave abuse of discretion in declaring Padian-Torogan as ghost precinct.  12
On a preliminary matter, though not clear, it appears from the records that Padian Torogan is a
barangay in Madalum, Lanao del Sur and it was erroneous for the COMELEC to consider
Padian-Torogan as a ghost precinct. In any case, the court is not tasked to determine whether
the so-called Padian Torogan is a barangay or a mere election. The petition states that
precinct No. 27A located in Barangay Padian Torogan was the one declared as a ghost
precinct by the COMELEC although the assailed Order did not mention any specific precinct
but simply declared "Padian Torogan as ghost precinct." To be clear, what was necessarily
contemplated by the assailed Order would be the election precinct in the said place.
It must be noted that under the Omnibus Election Code, there should be at least one precinct
per barangay. 1 In designating election precincts, the COMELEC usually refers to them by
number. Nevertheless, the determination of whether a certain election precinct actually exists
or not and whether the voters registered in said precinct are real voters is a factual matter. On
such issue, it is a time-honored precept that factual findings of the COMELEC based on its
own assessments and duly supported by evidence, are conclusive upon this Court, more so, in
the absence of a substantiated attack on the validity of the same.  Upon review of the records,
14 
the Court finds that the COMELEC had exerted efforts to investigate the facts and verified that
there were no public or private buildings in the said place, hence its conclusion that there were
no inhabitants. If there were no inhabitants, a fortiori, there can be no registered voters, or the
registered voters may have left the place. It is not impossible for a certain barangay not to
actually have inhabitants considering that people migrate. A barangay may officially exist on
record and the fact that nobody resides in the place does not result in its automatic cessation
as a unit of local government. Under the Local Government Code of 1991, the abolition of a
local government unit (LGU) may be done by Congress in the case of a province, city,
municipality, or any other political subdivision.  In the case of a barangay, except in
15 
Metropolitan Manila area and in cultural communities, it may be done by the Sangguniang
Panlalawigan or Sangguniang Panglunsod concerned subject to the mandatory requirement of
a plebiscite  conducted for the purpose in the political units affected.
16 
1awphil
The findings of the administrative agency cannot be reversed on appeal
or certiorari particularly when no significant facts and circumstances are shown to have been
overlooked or disregarded which when considered would have substantially affected the
outcome of the case. The COMELEC has broad powers to ascertain the true results of an
election by means available to it.  The assailed order having been issued pursuant to
17 
COMELEC's administrative powers and in the absence of any finding of grave abuse of vs.
discretion in declaring a precinct as non-existent, said order shall stand. Judicial interference is COMMISSION ON ELECTIONS (COMELEC), respondent.
unnecessary and uncalled for.  No voter is disenfranchised because no such voter exist. The
18 

sacred right of suffrage guaranteed by the Constitution  is not tampered when a list of fictitious
19 
RESOLUTION
voters is excluded from an electoral exercise. Suffrage is conferred by the Constitution only on
citizens who are qualified to vote and are not otherwise disqualified by law. On the contrary, TINGA, J.:
such exclusion of non-existent voters all the more protects the validity and credibility of the
electoral process as well as the right of suffrage because the "electoral will" would not be
For resolution is the Petition1 for certiorari and mandamus filed by Aklat-Asosasyon Para Sa
rendered nugatory by the inclusion of some ghost votes. Election laws should give effect to,
Kaunlaran Ng Lipunan At Adhikain Para Sa Tao, Inc. (Aklat) assailing the Commission on
rather than frustrate the will of the people. 
20

Elections (Comelec) Resolution2 dated January 8, 2004, which dismissed its Petition3 for re-

qualification as a party-list organization, and the Resolution4 dated February 13, 2004, which
WHEREFORE, the petition is hereby DISMISSED, and the assailed Order dated June 29, denied its Motion for Reconsideration.5
1998 of the Commission on Elections is UPHELD. No pronouncement as to costs. 1âwphi1.nêt

Briefly, the facts are as follows:

SO ORDERED.
On November 20, 2003, Aklat filed a Petition for declaration of re-qualification as a
party-list organization for purposes of the May 2004 elections. It alleged in its petition
that it participated in the 2001 elections but was disqualified by the Comelec as it was
found not to have complied with the guidelines set by the Court in the case of Ang
Bagong Bayani-OFW Labor Party v. Comelec (Bagong Bayani case)6 for party-list
organizations to qualify and participate as such in the party-list elections. Accordingly,
Aklat "re-organized itself in order that it will comply with the 8-point guidelines
enunciated by the Supreme Court"7 in the said case.

In its assailed Resolution dated January 8, 2004, the Comelec dismissed the petition stating
that Aklat cannot be considered as an organization representing the marginalized and
underrepresented groups as identified under Section 5 of Republic Act No. 7941 (R.A. 7941).
According to the Comelec, Aklat’s statement that it has re-organized itself does not cure this
defect as "there is nothing in the petition which will help us identify what particular
marginalized and underrepresented group AKLAT is now representing." 8 Further, the Comelec
held that "AKLAT lumped all the sectoral groups imaginable under the classification of regular
members just to convince us that it is now cured of its defect." 9

On January 15, 2004, Aklat filed a Motion for Reconsideration dated January 14, 2004,
substantially averring that it has reorganized itself and taken the necessary steps to make it an
organization of, by and for the marginalized and underrepresented groups of society,
G.R. No. 162203             April 14, 2004 particularly the indigenous cultural communities and the youth. To this end, it has allegedly
effected a fundamental change in its purposes as an organization, nature of its membership
AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT ADHIKAIN PARA SA and focus of its programs.10
TAO, INC., petitioner,
The Comelec denied the motion in its questioned Resolution dated February 13, 2004, on
three grounds, namely: the petition was filed beyond the deadline set by the Comelec in
Resolution No. 6320 for registration of party-list organizations; the petition was not one for re-
qualification as Aklat was never a registered party-list organization having failed to meet the
eight-point guidelines set by the Court in the Bagong Bayani case; and that its decision not to
extend the deadline for registration of party-list organizations is valid, the Comelec being in the
best position to make such a determination. 11
In the instant Petition, Aklat asserts that under Section 5 of R.A. 7941, petitions for registration
as a party-list organization may be filed not later than ninety (90) days before the elections. It
therefore had until February 10, 2004, the ninetieth (90th) day before the elections on May 10,
2004, within which to file its petition. Hence, its petition, which was filed on November 20,
2003, was filed within the allowed period. Section 5 of Resolution No. 6320 12 which requires
the filing of such petitions not later than September 30, 2003, is null and void as it amends
R.A. 7941.
It further maintains that it has complied with the eight-point guidelines set in the Bagong
Bayani case. Allegedly, Aklat has a total membership of over 4,000 persons who belong to the
marginalized and underrepresented groups. It has established information and coordination
centers throughout the country for the benefit and in representation of indigenous cultural
communities, farm and factory workers including fisherfolk and the youth. Aklat also asserts
that it is different from Asosasyon Para sa Kaunlaran ng Industria ng Aklat (A.K.L.A.T.) which
was previously de-registered by the Comelec. Because of all these, Aklat contends that the
Comelec gravely abused its discretion when it denied its petition for re-qualification.
The Office of the Solicitor General (OSG) filed a Comment dated March 26, 2004, stating that
the Comelec did not commit grave abuse of discretion in issuing the
assailed Resolutions. According to the OSG, Resolution No. 6320 is not in conflict with and is,
in fact, germane to the purpose of R.A. 7941. It was within the scope of the authority granted
to the Comelec that it issued Resolution No. 6320 setting the deadline for filing petitions for
registration under the party-list system on September 30, 2003. In line with the purpose of R.A.
7941 to enable marginalized sectors to actively participate in legislation, the Comelec must be
given sufficient time to evaluate all petitions for registration, at the same time allowing
oppositions to be filed to the end that only those truly qualified may be accredited under the
party-list system. Besides, Republic Act No. 8436 13 allows the Comelec to change the periods
and dates prescribed by law for certain pre-election acts to ensure their accomplishment.
The OSG further maintains that the petition for re-qualification failed to comply with the
provisions of Resolution No. 6320. According to the OSG, the petition was not properly verified
there being no showing that Mr. Dominador Buhain, the signatory of the verification and
certification of non-forum shopping, was duly authorized by Aklat to verify or cause the
preparation and filing of the petition on its behalf. Moreover, Aklat was registered with the
Securities and Exchange Commission only on October 20, 2003, a month before it filed its
petition for re-qualification. Hence, it has not existed for a period of at least one (1) year prior
to the filing of the petition as required by Section 6 of Resolution No. 6320. The OSG also
points out that Aklat failed to support its petition with the documents required under Section 7
of Resolution No. 6320, namely: a list of its officers and members particularly showing that the
majority of its membership belongs to the marginalized and underrepresented sectors it seeks
to represent, and a track record or summary showing that it represents and seeks to uplift the
marginalized and underrepresented sectors of society.
Moreover, the OSG notes that the incorporators and directors of Aklat are invariably known as
pillars of the book publishing industry or authors. Hence, even as re-organized, Aklat remains
to be an association of authors, book publishers, and publishing companies, rather than the
organization of indigenous cultural communities, farm and factory workers, fisherfolk and youth
it claims to be.
For its part, the Comelec filed a Comment dated March 29, 2004, stating that the period of
ninety (90) days prescribed in R.A. 7941 refers to the prohibitive period beyond which petitions
for registration may no longer be filed. Furthermore, the documents submitted by Aklat do not
prove that its members belong to the marginalized and underrepresented sectors of society.
Aklat’s contention that Resolution No. 6320 is null and void as it amends and amplifies R.A.
7941 deserves scant consideration. R.A. 7941 provides:
Sec. 5. Registration.—Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the election a petition verified by its
president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the
COMELEC may require: Provided, That the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals…[Italics supplied.]
By its wording, R.A. 7941 itself supports the Comelec’s position that the period stated therein
refers to the prohibitive period beyond which petitions for registration should no longer be filed
nor entertained. Put elsewise, it is simply the minimum countback period which is not subject
to reduction since it is prescribed by law, but it is susceptible of protraction on account of
administrative necessities and other exigencies perceived by the poll body.
Verily, the Comelec has the power to promulgate the necessary rules and regulations to
enforce and administer election laws. This power includes the determination, within the
parameters fixed by law, of appropriate periods for the accomplishment of certain pre-election
acts like filing petitions for registration under the party-list system. This is exactly what the
Comelec did when it issued its Resolution No. 6320 declaring September 30, 2003, as the
deadline for filing petitions for registration under the party-list system. Considering these, as
well as the multifarious pre-election activities that the Comelec is mandated to undertake, the
issuance of its Resolution No. 6320 cannot be considered tainted with grave abuse of
discretion.
constituencies considering that it has been in existence for only a month prior to the filing of its
petition for re-qualification.
It should finally be emphasized that the findings of fact by the Comelec, or any other
administrative agency exercising particular expertise in its field of endeavor, are binding on the
Supreme Court.17
In view of the foregoing, the Comelec can, by no means, be held to have committed grave
abuse of discretion to justify the setting aside of the assailed Resolutions.

Neither is there grave abuse of discretion in the Comelec’s denial of Aklat’s petition on the ACCORDINGLY, the Petition is DISMISSED.
ground that it failed to substantiate its claim that it represents the marginalized and
underrepresented sectors of society. It should be noted that it was Aklat which asserted in its
SO ORDERED.
petition before the poll body that it has re-organized and is now applying for re-qualification
after its de-registration for failure to comply with the guidelines set forth in the Bagong
Bayani case. Thus, the Comelec cannot be faulted for relying on its earlier finding, absent any
evidence in Aklat’s petition to the contrary, that Aklat is not an organization representing the
marginalized and underrepresented sectors, but is actually a business interest or economic
lobby group which seeks the promotion and protection of the book publishing industry.

Significantly, Aklat and A.K.L.A.T. have substantially the same incorporators. In fact, four (4) of
Aklat’s six (6) incorporators14 are also incorporators of A.K.L.A.T. 15 This substantial similarity is
hard to ignore and bolsters the conclusion that the supposed re-organization undertaken by
Aklat is plain window-dressing as it has not really changed its character as a business interest
of persons in the book publishing industry.

The Court observes that Aklat’s articles of incorporation and document entitled The Facts
About Aklat which were attached to its petition for re-qualification contain general averments
that it supposedly represents marginalized groups such as the youth, indigenous communities,
urban poor and farmers/fisherfolk. These general statements do not measure up to the first
guideline set by the Bagong Bayani case for screening party-list participants, i.e., that "the
political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of R.A. 7941. In other words, it must show—
through its constitution, articles of incorporation, bylaws, history, platform of government and
track record—that it represents and seeks to uplift marginalized and underrepresented
sectors. Verily, majority of its membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is
likely to choose the interest of such sectors."16

In this regard, the Court notes with approval the OSG’s contention that Aklat has no track
record to speak of concerning its representation of marginalized and underrepresented